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Ninth Circuit Court of Appeals Weekly Roundup – October 31 – November 6

A roundup of cases recently decided by the U.S. Ninth Circuit Court of Appeals that will inform Indian country about litigation in the West that affects tribal interests.

Beginning this week, Indian Country Today Media Network is introducing a periodical roundup of court cases recently decided by the U.S. Ninth Circuit Court of Appeals. The roundup will complement the Circuit Court of Appeals Weekly Roundup, which already includes a 10th Circuit weekly roundup, and inform Indian country about litigation in the West that affects tribal interests. We play catchup in this initial installment, covering Ninth Circuit cases handed down over the last several months.

Tribal Courts May Impose Cumulative Terms Exceeding One Year

The Ninth Circuit confirmed in August that tribal courts may render consecutive prison terms cumulatively exceeding one year for multiple criminal violations arising from a single criminal transaction. In Miranda v. Anchando, 654 F.3d 911 (9th Cir. 2011), the court overruled a federal district court in Arizona, which had held that the Indian Civil Rights Act (“ICRA”) barred the Pascua Yaqui Tribal Court from imposing more than a year sentence as a result of “single criminal transaction.”

Beatrice Miranda, an enrolled member of the Pascua Yaqui Tribe, was arrested for a 2008 knife-wielding chase of a teen through the reservation. After threats to the teen (who Miranda believed was mocking her) and the teen’s sister, the teen hit Miranda “squarely” in the face with a basketball. Miranda continued to threaten the teen, and then her sister. Police arrived and arrested Miranda, who was charged by the tribe with eight violations of the Pascua Yaqui Tribal Criminal Code, found guilty, and sentenced to 910 days in prison as follows: (1) two consecutive 365–day terms on the aggravated assault counts; (2) two consecutive 90-day terms on the threatening and intimidating counts; (3) two concurrent 60-day terms on the endangerment counts; and (4) two concurrent 30-day terms on the disorderly conduct counts.

Miranda appealed through the Pascua Yaqui Tribe Court of Appeals, arguing in part that her 910-day sentence violated ICRA, which the tribal appellate court rejected. Miranda went to federal court to try and have her sentence overturned on the same grounds.

The U.S. District Court sided with Miranda, and ordered the tribal court to reduce her sentence to one year and release her from custody, finding that “Congress did not intend to allow tribal courts to impose multiple consecutive sentences for criminal violations arising from a single transaction.”

The Ninth Circuit rejected Miranda’s argument and reversed the district court. The panel comprising Judges Schroeder and Bea, with District Court Judge Janis Sammartino sitting by designation and writing the opinion, held that ICRA “unambiguously permits tribal courts to impose up to a one-year term of imprisonment for each discrete criminal violation,” even if they arise from the same criminal event. As long as tribal courts sentence convicted criminals based on separate offenses, cumulative terms exceeding one year will not be overturned based on ICRA time limitations.

Certain Tribal Businesses Exempt From Federal Unemployment Taxes

Tribal businesses do not have to pay Federal Unemployment (FUTA) taxes where services are performed “in the employ of an Indian tribe” – but only where a tribe or its instrumentality is a “common-law” employer of the worker performing the services.

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In Blue Lake Rancheria v. United States, 653 F.3d 1112 (2011), the Ninth Circuit held that because the tribe’s employee leasing and temporary staffing business was a common-law, as opposed to statutory employer, the IRS had incorrectly failed to refund FUTA taxes paid to the tune of about $2 million plus interest. A common-law employer is an employer based on the law of agency, while a statutory employee for purposes of FUTA can simply be a paymaster. Although Blue Lake Rancheria had argued that even services provided by statutory employees were excepted from FUTA, it ended up not mattering to the Ninth Circuit, which found that the tribe’s business was in fact a common-law employer.

Tribes in the business of providing leased employees to other business, should carefully navigate the requirements of the Blue Lake decision to ensure that they take advantage of what are now clear federal tax benefits.

Federal Sovereign Immunity Does Not Bar Nuisance, Fiduciary Breach Claims

First the U.S. Bureau of Land Management (BLM) botched Alaska Native William Carlo Jachetta’s 1971-application for a 160-acre Native allotment. Then it added injury to insult by letting the state and Alyeska, the Trans-Alaska pipeline Operator, use his land as a “material site.”

Starting in 1973 Alaska and Alyeska removed more than 700,000 cubic yards of gravel from the parcel in question. By the time Jachetta received his allotment, it was a moonscape containing a giant crater.

Jachetta sued the BLM, Alaska, and Alyeska in federal court, alleging several torts and theories of recovery. The U.S. District Court dismissed Jachetta’s action against the BLM and Alaska on the basis of state and federal sovereign immunity. Reviewing the decision, the Ninth Circuit upheld Alaska’s immunity, but ruled that Jachetta could move forward with Federal Tort Claims Act (FTCA) claims based on nuisance and breach of fiduciary duties claims. FTCA tort liability requires a court to examine whether a claim would sound under state tort laws. Because Alaska law contains both the torts of fiduciary breach and nuisance, Jachetta was allowed to move forward with his claims.

Montana Does Not Apply To Tribal Court Jurisdiction On Tribal Lands

In June, a three-judge Ninth Circuit panel clarified how the Montana calculus will be applied in the Ninth Circuit. The court, in a significant victory for tribes and tribal judiciaries, confirmed that in the Ninth Circuit Montana generally does not apply to questions of tribal court jurisdiction on tribal land. Water Wheel Camp Recreational Area, Inc. v. LaRance, 642 F.3d 802 (9th Cir. 2011).

The Montana case limits tribal court jurisdiction to instances in which (1) a non-Indian has a consensual commercial relationship with a tribe, from which a lawsuit stems or (2) non-Indian conduct directly affects the tribe’s political integrity, economic security, health, or welfare. In Water Wheel, the court limited the U.S. Supreme Court’s use of Montana in the tribal land context, curbing Nevada v. Hicks to the “narrow decision it explicitly claims to be.” Now, its application of Montana to jurisdictional questions arising on tribal lands is only appropriate when the specific concerns at issue in Hicks (a state officer being haled into tribal court) are present. The court prudently observed that it “must follow precedent that limits Montana to cases arising on non-Indian land” – something other courts have failed to do.

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