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38 ILR 1 (2011)

handle is hein.amindian/indlr0038 and id is 1 raw text is: INDIAN LAW REPORTER A PUBLICATION OFTHE AMERICAN INDIAN LAWYER TRAINING PROGRAM, INC. January 2011 Celebrating 38 Years of Service Volume 38, No. 1 t . I Month in Brief UNITED STATES COURTS OF APPEALS EIGHTH CIRCUIT Claims against United States: Federal Tort Claims Act Sovereignty: Sovereign Immunity; Federal The U.S. Court of Appeals for the Eighth Circuit affirms the district court's dismissal of a wrongful death action for lack of subject matter jurisdiction in which the district court held that the discretionary function exemption to the Federal Tort Claims Act's general waiver of sovereign immunity barred the appel- lant's claims asserted against the United States that a Bureau of Indian Affairs law enforcement officer failed adequately to supervise, secure and detain her son after her son's arrest for fed- eral crimes resulting in the son's suicide. Hart v. United States, No. 10-1604,38 Indian L. Rep. 2001 (8th Cir., Jan. 11,2011). NINTH CIRCUIT Indian Lands: Title to Indian Lands; Aboriginal Title Rights of Way and Easements: Highways and Roads In an action over the rights of access to and occupation of a parcel of land surrounded by Indian reservation land, the U.S. Court of Appeals for the Ninth Circuit holds that: (1) the United States is not an indispensable party to the action; (2) the district court properly implied an easement in the federal gov- ernment's grant of section 16 to Arizona and that easement was not disturbed by the subsequent expansion of the Gila River Indian Reservation; (3) the implied easement Arizona obtained in 1877 was effectively conveyed to each subsequent purchaser; (4) Gila River Indian Community's aboriginal title was extin- guished in 1877; (5) the appellee failed to show that Arizona established two roads of access as public highways crossing pub- lic land; and (6) the district court erred in refusing to take judi- cial notice of the official action of the Bureau of Indian Affairs determining that one of the roads is not an Indian reservation road (IRR) and in applying laches to conclude that a section of one of the roads is an IRR; and remands to the district court for further consideration of whether the road is an IRR. Lyon v. Gila River Indian Community, Nos. 08-15570 and 08-15712, 38 Indian L. Rep. 2003 (9th Cir., Nov. 24, 2010). TENTH CIRCUIT Sovereignty: Sovereign Immunity; Tribal Finding that tribal business entities have a sufficiently close relationship with the Picayune Rancheria of the Chukchansi Indians, the U.S. Court of Appeals for the Tenth Circuit holds that the Chukchansi Economic Development Authority, the Chukchansi Gold Casino and Ryan Stanley are protected from suit by tribal sovereign immunity, and thus reverses the district court's ruling and remands to the district court for a determina- tion of whether the entities waived their immunity from suit through licensing agreements with the plaintiff, and denies the plaintiff's cross-appeal for lack of jurisdiction. Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort, et al., Nos. 08-1298, 08-1305 and 08-1317, 38 Indian L. Rep. 2010 (10th Cir., Dec. 27, 2010). Criminal Jurisdiction and Procedure The U.S. Court of Appeals for the Tenth Circuit affirms the appellant's conviction on thirty-three counts of embezzlement from an Indian tribal organization in violation of 18 U.S.C. § 1163. United States v. Saupitty, No. 09-6186, unpublished, 38 Indian L. Rep. 2021 (10th Cir., Oct. 13, 2010). Criminal Jurisdiction and Procedure: Sentencing The U.S. Court of Appeals for the Tenth Circuit concludes that the district court did not err in refusing to raise defendant's base offense level by only 3 levels based on a finding of mere bodily injury. United States v. Warrior, No. 09-6057, unpub- lished, 38 Indian L. Rep. 2023 (10th Cir., Nov. 10, 2010). ELEVENTH CIRCUIT Civil Rights: Native American Prisoners' Rights Because the plaintiff failed to allege any physical injuries or mental or emotional injuries related to physical injuries from the defendants' failure to notify him of threats from other inmates, the U.S. Court of Appeals for the Eleventh Circuit con- cludes that the district court did not err in dismissing with prej- udice the plaintiff's complaint under the Prison Litigation Reform Act, 28 U.S.C. § 1915(e)(2) (B)(i), as well as the plain- tiff's claims under the Eighth and Fifth Amendments, or under the Indian Civil Rights Act, the Navajo Treaty of 1868, or 8 U.S.C. § 1401 (b). Tsosie v. Garrett, et al., No. 09-16439, unpub- lished, 38 Indian L. Rep. 2024 (11th Cir., Nov. 29,2010). 38 ILR 1 Copyright © 2011 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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