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34 ILR 1 (2007)

handle is hein.amindian/indlr0034 and id is 1 raw text is: INDIAN LAW REPORTER A PUBLICATION OFTHE AMERICAN INDIAN LAWYER TRAINING PROGRAM, INC. January 2007 Celebrating 34 Years of Service Volume 34, No. 1 ii Month in Brief UNITED STATES COURTS OF APPEALS SECOND CIRCUIT Sovereignty- Sovereign Immunity, State Officers State Jurisdiction In an action against New York State Police challenging mea- sures taken to disperse peaceful protestors on private property, the U.S. Court of Appeals for the Second Circuit affirms the dis- trict court's denial of the defendants' summary judgment motion for qualified immunity on plaintiffs-appellants' claims of First and Fourth Amendment violations, and holds that: (1) the district court erred in applying the Second Circuit's precedent in Atkins v. New York City, 143 F.3d 100 (2d Cir. 1998), to find that any force used in connection with an arrest lacking proba- ble cause is by definition excessive; (2) while the district court erred in concluding that New York law does not provide for qualified immunity on state-law claims, the defendants are not entitled to qualified immunity as a matter of law because the same unresolved factual questions that precluded the court from granting the defendants qualified immunity on the federal claims apply equally to plaintiffs' state-law claims; and (3) the Second Circuit lacks appellate jurisdiction over plaintiffs' cross- appeal because it does not present questions inextricably inter- twined with defendants' appeal. Papineau, et al. v. Parmley, et al., Nos. 05-1830-cv (L) and 05-2035-cv (XAP), 34 Indian L. Rep. 2001 (2d Cir., Oct. 4,2006). NINTH CIRCUIT Claims against United States Environmental Regulation Trust Responsibility, United States The U.S. Court of Appeals for the Ninth Circuit reverses the district court's grant of summary judgment in favor of the defendants and directs the district court to enter summary judg- ment in favor of the Pit River Tribe, concluding that the Bureau of Land Management and the U.S. Forest Service did not take a hard look at the environmental consequences of the 1998 lease extensions granted to Caipine Corporation and never ade- quately considered the no-action alternative. Pit River Tribe, et al. v. U.S. Forest Service, et al., No. 04-15746, 34 Indian L. Rep. 2007 (9th Cir., Nov. 6,2006). Administrative Law and Procedure: Administrative Procedures Act Trust Responsibility, United States: Statutes The U.S. Court of Appeals for the Ninth Circuit affirms the district court's order granting summary judgment for the United States for lack of jurisdiction in an action against the Bureau of Land Management, the Bureau of Indian Affairs and the Indian Health Service alleging that the government violated specific and general trust obligations to protect tribal trust resources by authorizing and planning to expand two cyanide heap-leach gold mines located upriver from the tribal plaintiffs' reservations, concluding that nothing within any statutes or treaties cited by the tribes imposes a specific duty on the gov- ernment to manage non-tribal resources for the benefit of the tribes. Gros Ventre Tribe, et al. v. United States, et al., No. 04- 36167, 34 Indian L. Rep. 2015 (9th Cir., Nov. 13,2006). Civil Jurisdiction and Procedure: Rules of Civil Procedure Hunting, Fishing, Trapping and Gathering Rights Treaties with United States Reversing the district court and remanding for a trial on the merits, the U.S. Court of Appeals for the Ninth Circuit con- cludes that the Confederated Tribes of the Colville Indian Reservation were precluded from asserting a claim under an 1894 Agreement in an action concerning the United States' 1855 Treaty with the Confederated Tribes and Bands of the Yakama Indian Nation and thus res judicata does not bar the Colville Tribes from asserting the claim of one of its constituent tribes, the Wenatchi Tribe, to fishing rights at the Wenatshapam Fishery based on the 1894 Agreement. United States, et al. v. Oregon, et al., No. 03-35773, 34 Indian L. Rep. 2021 (9th Cir., Dec. 4,2006). 34 ILR 1 Copyright © 2007 by the American Indian Lawyer Training Program, Inc. Rights of redistribution or reproduction belong to the copyright owner. ISSN-0097-1154

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