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36 ILR 1 (2009)

handle is hein.amindian/indlr0036 and id is 1 raw text is: INDIAN LAW REPORTER A PUBLICATION OF THE AMERICAN INDIAN LAWYER TRAINING PROGRAM, INC January 2009 Celebrating 36 Years of Service Volume 36, No. 1 Month in Brief UNITED STATES COURTS OF APPEALS SECOND CIRCUIT Federal Authority over Indian Affairs: Loans The U.S. Court of Appeals for the Second Circuit affirms the district court's judgment finding that the decision of the Farm Service Agency (FSA), of the U.S. Department of Agriculture, that the appellants did not qualify for debt restructuring was not arbitrary, capricious or an abuse of discretion, nor did the FSA commit the alleged procedural violations or engage in dis- crimination. Sheehy, et al. v. Johanns, et al., No. 07-1732-cv, 36 Indian L. Rep. 2001 (2d Cir., Oct. 31,2008). EIGHTH CIRCUIT Voting Rights The U.S. Court of Appeals for the Eighth Circuit holds that the district court did not abuse its discretion in adopting plain- tiffs' Plan C at-large cumulative voting scheme in a challenge to a redistricting plan on the grounds that the redistricting plan diluted the voting strength of Native Americans. Cottier, et al. v. City of Martin, et al., No. 07-1628, 36 Indian L. Rep. 2001 (8th Cir., Dec. 16,2008). NINTH CIRCUIT Taxation The U.S. Court of Appeals for the Ninth Circuit finds that the legal incidence of the California sales tax falls upon the non- Indian subcontractor, affirming the district court's holding that the tax meets the per se test of the Supreme Court's ruling in Oklahoma Tax Commission v. Chickasaw Nation, 515 U.S. 450 (1995), but rejecting the district court's conclusion that the pre- emption test of the Supreme Court's ruling in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), invalidates the state tax, and thus reverses the district court's grant of summary judgment to the Tribe, and remands for judgment to be entered in favor of the members of the California State Board of Equal- ization. Barona Band of Mission Indians, et al. v. Yee, et al, No. 06-55918,36 Indian L. Rep. 2008 (9th Cir., June 18,2008). Employment The U.S. Court of Appeals for the Ninth Circuit affirms the district court's grant of summary judgment for the Bureau of Indian Affairs in an action challenging the denial of increased retirement benefits payable to employees whose duties included firefighting. Lawrence, et al. v. Department of Interior, et al., No. 06-35448,36 Indian L Rep. 2012 (9th Cir., May 13,2008). Sovereignty- Sovereign Immunity, Federal U.S. Court of Federal Claims The U.S. Court of Appeals for the Ninth Circuit holds that the Tucker Act's waiver of the United States' sovereign immu- nity is limited to suits filed in the U.S. Court of Federal Claims, and thus reverses the district court's judgment and remands with instructions to transfer the action to the Court of Federal Claims in an action asserting the taking of property by the Bureau of Indian Affairs. McGuire v. United States, No. 06- 15812,36 Indian L. Rep. 2013 (9th Cir., Dec. 24, 2008). Environmental Regulation: Clean Water Act Federal Energy Regulatory Commission National Historic Preservation Act Religion: Religious Freedom Restoration Act In a challenge to a hydropower project relicensing determi- nation by the Federal Energy Regulatory Commission, the U.S. Court of Appeals for the Ninth Circuit affirms the Commis- sion's finding that the relicensing decision does not substantially burden the Snoqualmie Tribe's free exercise of religion, holds that the application of the wrong standard for analyzing Reli- gious Freedom Restoration Act claims was harmless error, finds that the Commission was not obligated to consult with the Tribe because the Tribe was not a federally-recognized tribe at the time that section 106 of the National Historic Preservation Act's consultation requirement had to be met, and holds that the Commission's amendment of the license order's minimum instream flow provisions did not conflict with the Washington State Department of Ecology's water quality certification pur- suant to the Clean Water Act. Snoqualmie Indian THbe, et al v. Federal Energy Regulatory Commission, et al., Nos. 05-72739 and 05-74060,36 Indian L. Rep. 2018 (9th Cir., Oct. 7,2008). 36 ILR 1 Copyright © 2009 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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