Skip to main content

Ninth Circuit Court of Appeals Roundup

Continuing Indian Country Today Media Network’s periodic roundup of court cases relevant to Indian country decided in the Ninth Circuit, we examine several new federal circuit court of appeals decisions from the West.

Tribal Exhaustion Compelled, but Montana Exception Further Questioned

Nearly 30 years ago, in Montana v. United States, 450 U.S. 544 (1981), the U.S. Supreme Court held that tribes have jurisdiction to regulate “the conduct of non-Indians on fee lands within the reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Id. at 566. Where this type of tribal jurisdiction is “colorable” or “plausible,” a non-Indian must first exhaust tribal remedies before bringing suit in federal court to challenge tribal jurisdiction. Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845, 856 (1985); Elliott v. White Mountain Apache Tribal Court, 566 F.3d 842, 848 (9th Cir. 2009).

Fast forward to 2012, when, in Rincon Mushroom Corp. v. Mazzetti, No. 10-56521, 2012 WL 2928605 (9th Cir. July 19, 2012), a non-Indian owner of a fee simple parcel of land located on the Rincon Band of Luiseno Mission Indians’ reservation is challenging the tribe’s regulatory and adjudicatory authority to protect the reservation natural environment. The non-Indian plaintiff filed suit in U.S. District Court to enjoin the tribe from enforcing its Environmental Enforcement Code in its tribal court. The Southern District of California, applying Montana, found that because “conduct on Plaintiff's property plausibly could threaten the tribe's groundwater resources and could contribute to the spread of wildfires on the reservation,” the conduct “threaten[ed] … the health or welfare of the tribe” and tribal court jurisdiction was therefore proper. The trial court dismissed the complaint for failure to exhaust tribal remedies. The Ninth Circuit reversed the trial court’s determination, but then granted a rehearing en banc.

On rehearing, the non-Indian plaintiff argued that the tribe lacked regulatory jurisdiction over the property at issue because the property is non-Indian land held in fee simple and tribes generally do not have jurisdiction over such lands. Therefore, he asserted, the case “falls within an exception to the tribal exhaustion requirement for assertions of tribal jurisdiction that are not ‘colorable’ or ‘plausible.’” Id. at *1.

The Ninth Circuit disagreed, finding the threats to the tribe to be “plausible.” Id. In doing so, however, the Court clearly limited its holding to procedural grounds: “We emphasize that we are not now deciding whether the tribe actually has jurisdiction. … If the tribal courts sustain tribal jurisdiction and Rincon Mushroom is unhappy with that determination, it may then repair to federal court.” Id. at *2. Indeed, leaving this door wide-open, the Court reversed the trial court’s decision to dismiss the case, instead ruling that it should have been “stay[ed] … pending the exhaustion of tribal remedies” so that the plaintiff could later revive the suit. Id.

A dissent authored by Judge Rawlinson seemed to indicate where the Appeals Court was going with its ruling: “On the issue of tribal jurisdiction over non-Indians, the United States Supreme Court is moving in one direction and we are moving in another. In recent years, the Supreme Court has clearly signaled that tribal jurisdiction over non-Indians on fee simple land is tenuous, at best. … Once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it.” Id. (quotation omitted). Judge Rawlinson would have required that the injunction be issued against the tribe.

The dissent relied wholly on Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008). Plains Commerce, however,did not stand for the proposition that Judge Rawlinson advocated. While holding that tribes cannot control the sale and ownership of non-Indian fee land, the Plains Commerce Court make clear that the tribe could nonetheless regulate Indian and non-Indian “activity” and “conduct” on those lands. Id. at 332 (emphasis added). If Judge Rawlinson’s dissent is indeed where the Ninth Circuit is going – and all the signs in Rincon Mushroom point that it is – the Supreme Court’s explicit “distinction between sale of [non-Indian owned fee] land and conduct on it” is put in serious jeopardy. Id. at 335 (emphasis added). This is a case to watch.

Not All Unstamped Cigarettes are Contraband

In United States v. Wilbur, 674 F.3d 1160 (9th Cir. 2012), the Ninth Circuit held that cigarettes sold by a tribally licensed retailer and pursuant to a state-tribe cigarette agreement are not contraband for purposes of the federal Contraband Cigarette Trafficking Act (CCTA) – even if they are contraband under state law.

According to the Appeals Court, even if cigarettes are transported in violation of state law, the CCTA only makes cigarettes “contraband” in this context if they “bear no evidence of the payment of applicable State or local cigarette taxes in the State or locality where such cigarettes are found.” 18 U.S.C. § 2341(2). The cigarettes at issue during one period of the Wilbur case were unstamped. But the defendants qualified as an Indian retailer under Washington state law, came partially within the constraints of a tribal tobacco tax compact, and therefore were not subject to state taxes – even though they were allegedly illegal under state cigarette transportation laws and were out of compliance with some tribal regulations.

Scroll to Continue

Read More

At its core, for the period in which convictions were overturned, the decision implicitly recognized the legitimacy of tribal tobacco regulation. This could, by analogy or otherwise, undercut the interpretation of the Prevent All Cigarette Trafficking (PACT) Act by federal agencies that suggested tribal tobacco entities must be licensed by the state to be considered “lawfully operating” under that federal law.

The Wilbur defendants’ convictions were upheld for other periods of the alleged conspiracy. And of more concern is the appearance of state officers acting in federal clothing. As the opinion observed, “a Lieutenant with the Washington State Liquor Control Board who was deputized as a Special Deputy U.S. Marshall, led the search” of the defendants’ retail facility. Although tribal law enforcement also participated in the raids, it is nonetheless noteworthy that reliance by federal statute on state law predicates is problematic in the face of “the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, 358 U.S. 217, 220 (1959).

The apparent ability for state officers to don federal clothing and enforce the state-federal hybrid criminal frameworks on reservations is an even more profound threat to that right. As explicitly contemplated by the Tribal Law and Order Act, if federally deputized non-federal officers are enforcing laws on the Reservation, it should be federally deputized tribal officers doing so. This concern is of course nothing new, as Indian country recently resisted the STOP Act, which would have imported state and big-tobacco interests into Reservation economies under color of federal law, including by way of state cops masked as federal officers. Wolves in sheep’s clothing; Trojan horse; pick your cliché. This is a trend to watch, and guard against.

Besides the clarity provided by Wilbur, and its limitation on the reach of the CCTA, in the end, a state was still able to enforce its laws on the Reservation, against Reservation Indians. Still, the Wilbur decision can be chalked up as a win for tribal interests.

Save the Peaks Attorney Personally Sanctioned

Last February, the Ninth Circuit held, in Save the Peaks Coalition v. U.S. Forest Service, 669 F.3d 1025 (9th Cir. 2012), that the U.S. Forest Service had complied with the requisite environmental regulations in issuing a special use permit. According to the Appeals Court, the suit had no place before it: “This case represents a gross abuse of the judicial process. Just when Defendants … had successfully defended an agency decision to allow snowmaking at a ski resort on federal land all the way to the United States Supreme Court, ‘new’ plaintiffs appeared.” These “new” plaintiffs, the Court stated, brought claims that were “virtually identical to some that the attorney had improperly attempted to raise in the earlier lawsuit, for no apparent reason other than to ensure further delay and forestall development.”

Continuing the saga, in the recent Save the Peaks Coalition v. U.S. Forest Service, 683 F.3d 1140 (9th Cir. 2012), the Ninth Circuit personally sanctioned the attorney for Save the Peaks for “willfully abus[ing] the judicial process by acting with the improper purpose of imposing delays and costs.” Although the move was not unprecedented, such sanctions are extremely rare. The Court awarded all costs, other than attorney's fees, that the Defendants incurred in litigating the suit in both the District Court and in the Ninth Circuit. On July 27th, the attorney’s motion for an en banc rehearing on the matter was denied.

Alaskan Native Fishing Dispute Hinges On Historic “Exclusive Use”

In a tense en banc decision, the Ninth Circuit held last month that although Chugach people continuously used and occupied part of the Gulf of Alaska, they do not now have aboriginal rights to hunt and fish the area because their historic use was not “exclusive.” The en banc oral argument is worth watching for those interested in how the court treats aboriginal hunting and fishing rights cases.

The Appeals Court issued an unsigned per curiam opinion, as pointed out multiple times by the dissent, in which it parsed the word “exclusive.” As the dissent pointed out, a finding of exclusivity should follow where there is no evidence indicating that other tribes of Indians were using and occupying land at the same time. However, the narrow majority and the five-judge dissent disagreed primarily on whether when other peoples “wandered over” the “periphery” of Chugach areas, they negated such exclusivity. The majority noted that the Judge William Fletcher’s definition of periphery was rare and that, “Fish is best rare; language, not so much.” Judge Fletcher retorted: “I understand why the majority is misreading the word: If periphery is read, as it should be, to mean edge or boundary, a rationale for the majority’s decision disappears. But I do not understand how the majority can, with a straight face, maintain that its reading is correct.”

Anthony Broadman is a partner with Galanda Broadman in Seattle. His practice focuses on matters critical to Indian country. He can be reached at