Justia U.S. 10th Circuit Court of Appeals Opinion Summaries

While responding to an early-morning 911 call, Officer Blaine Parnell of the United States Bureau of Indian Affairs, attempted to arrest Jakota Wolfname on two outstanding tribal warrants. Parnell ordered Wolfname to put his hands behind his back; instead, Wolfname ran away. As the result of his flight from Parnell and the ensuing scuffle, a grand jury indicted Wolfname for “knowingly and forcibly assault[ing], resist[ing], and interfer[ing] with” Parnell while Parnell “was engaged in the performance of his official duties, which resulted in bodily injury to . . . Parnell.” The jury found Wolfname guilty of resisting and interfering with Parnell in violation of 18 U.S.C. section 111(a)(1). It also found that Wolfname made physical contact with Parnell. But the jury wrote, “No,” next to the assault option on the verdict form. And despite testimony from Parnell and his orthopedic surgeon indicating that Parnell suffered damage to a ligament in his thumb during the struggle, the jury also declined to find that Wolfname inflicted bodily injury on Parnell. The district court imposed a 24-month prison sentence. Wolfname appealed. In this case, the parties asked the Tenth Circuit Court of Appeals to decide whether assault was an element of every conviction under 18 U.S.C. 111(a)(1). The Tenth Circuit found that the district court erred in failing to instruct the jury it had to find Wolfname assaulted Parnell. This error was plain error, and warranted reversal. View "United States v. Wolfname" on Justia Law

Thirty years ago, the Tenth Circuit decided all boundary disputes between the Ute Indian Tribe, the State of Utah, and its subdivisions. The only thing that remained was for the district court to memorialize that mandate in a permanent injunction. Twenty years ago, the Court modified its mandate in one respect, but stressed that in all others, the Court's earlier decision remained in place. The matter came before the Tenth Circuit again: the State of Utah, one of its cities, and several of its counties sought to relitigate the same boundaries. "Over the last forty years the questions haven’t changed - and neither have our answers." This case and all related matters were reassigned to a different district judge. The court and parties were directed to proceed to a final disposition both promptly and consistently with the Tenth Circuit's mandates in "Ute V," "Ute VI," and this case. View "Ute Indian Tribe of the Uintah v. Myton" on Justia Law

Jason Merida, the former executive director of construction for the Choctaw Nation of Oklahoma (the Nation), was convicted after a fifteen-day jury trial on six counts of a seven-count indictment. The indictment alleged Merida conspired to receive cash and other remuneration from subcontractors performing work on construction projects for the Nation, embezzled in excess of $500,000 by submitting and approving false subcontractor invoices, and willfully failed to report income on his 2009 and 2010 federal tax returns. Merida testified in his own defense at trial and, on cross-examination, prosecutors impeached his testimony using the transcript of an interview the Nation’s attorneys had conducted with him as part of a separate civil lawsuit, before the initiation of these criminal proceedings. Merida objected to the use of the transcript and moved for mistrial, arguing the transcript was protected by the attorney-client privilege and its use prejudicially damaged his credibility with the jury. The district court denied his motion for a mistrial and the jury convicted Merida on all but one count. Merida timely appealed the trial judge’s denial of his motion for mistrial. Finding no reversible error, the Tenth Circuit affirmed. View "United States v. Merida" on Justia Law

Defendant Roger Barnett served as Second Chief of the Muscogee (Creek) Nation in 2013 and 2014. He pleaded guilty in the United States District Court for the Northern District of Oklahoma to embezzling funds from the Tribe by appropriating to his own use money withdrawn from ATM machines. The sole issue on this appeal was whether the district court properly determined the amount of money embezzled for purposes of calculating Defendant’s offense level and the amount he owed the Tribe in restitution. Defendant argued that the court’s reliance on the presentence report (PSR) and Addendum was improper because the government failed to present at sentencing any evidence of the amount of loss. The Tenth Circuit disagreed: the district court could properly rely on the PSR and Addendum because Defendant did not adequately challenge their recitations of the evidence concerning his defalcations. The only issue that he preserved for appeal was whether the recited evidence sufficed to support the court’s determination of the amount of loss, and the Tenth Circuit held that the evidence was sufficient. View "United States v. Barnett" on Justia Law

Ute Tribe member Todd Murray died on April 1, 2007, after a police pursuit. Murray’s parents Debra Jones and Arden Post, on behalf of themselves and Murray’s estate, brought a 13-count complaint in the district court alleging various constitutional violations under 42 U.S.C. 1983, conspiracy to violate civil rights under 42 U.S.C. 1985, and state tort claims. Claims were brought in varying permutations against nine individual law enforcement officers, their employers, and a private mortuary (collectively, “Defendants”). Plaintiffs also sought sanctions against Defendants for alleged spoliation of evidence. The district court granted summary judgment to the mortuary on Plaintiffs’ emotional distress claim, and to all remaining Defendants on all federal claims. The court also dismissed as moot Plaintiffs’ motion for partial summary judgment on the status of Indian lands, and denied Plaintiffs’ motion for spoliation sanctions. The district court declined to exercise supplemental jurisdiction over the remaining state law torts after disposing of the emotional distress claim and the federal claims. Plaintiffs appealed all of these rulings in two appeals. The Tenth Circuit affirmed the district court, but dismissed an appeal of the taxation of costs because it lacked appellate jurisdiction. View "Jones v. Norton" on Justia Law

Plaintiffs were descendants of the victims of the 1864 Sand Creek Massacre and brought suit for an accounting of the amounts they alleged the U.S. government held in trust for payment of reparations to their ancestors. Because the United States had not waived its sovereign immunity, the Tenth Circuit affirmed the district court’s dismissal of this case for lack of subject matter jurisdiction. View "Flute v. United States" on Justia Law

In April 2013, plaintiffs filed a complaint in Utah state court seeking declaratory and injunctive relief. The complaint sought a declaration as to the authority of the Ute Indian Tribe of the Uintah and Ouray Reservation (the "Tribe") over non-Indian businesses operating on certain categories of land. It also alleged that Dino Cesspooch, Jackie LaRose, and Sheila Wopsock (individuals affiliated with the Ute Tribal Employment Rights Office ("UTERO")), had harassed and extorted plaintiffs in violation of state law. Defendants filed a motion to dismiss in state court by way of a special appearance, arguing that service of process had been insufficient, that the state court lacked subject matter jurisdiction in the absence of a valid waiver of tribal sovereign immunity, that the Tribe and its officers were immune from suit but were necessary and indispensable parties, and that plaintiffs failed to exhaust administrative remedies in tribal court. Cesspooch and LaRose were properly served. Two attorneys for the defendants moved for pro hac vice admissions. The motions were granted. Following a hearing on the motion to dismiss, the state court ordered further briefing on whether defendants' motion constituted a general appearance and authorized substituted service on the Tribe and Wopsock. The court then granted plaintiffs' motion to file an amended complaint adding additional defendants. The Tribe, Cesspooch, LaRose, and Wopsock were served the amended complaint. The Tribe filed a notice of removal in the U.S. District Court for the District of Utah. In its notice, the Tribe stated that Cesspooch, LaRose, and Wopsock consented to removal, and that the remaining defendants would consent. The remaining defendants (save one) filed consent and joinders to removal. Plaintiffs moved to remand, arguing that the initial defendants waived their right to removal (or to consent to removal) by litigating in state court, removal was untimely, the defendants had not unanimously consented to removal, and that the federal court lacked subject matter jurisdiction. The district court granted the motion to remand. The Tribe appealed the remand order. The Tenth Circuit dismissed this appeal, finding that under 28 U.S.C. 1447(d), a district court order remanding a case to state court was "not reviewable on appeal or otherwise." Further, the Court held that a district court order remanding because the defendants did not unanimously join or consent to removal was patently "not reviewable." In addition, the Court concluded that the remand order in this case was colorably characterized as being based on lack of unanimity. View "Harvey v. Ute Indian Tribe" on Justia Law

Defendant Jeffrey Zander was convicted of two counts of mail fraud, two counts of wire fraud, one count of money laundering, and three counts of willful failure to file federal tax returns. The fraud and money laundering counts at issue in this appeal all arose out of Defendant’s scheme to divert federal grant money intended for the Paiute Indian Tribe for his own personal use. Defendant began working for the Tribe as a tribal planner in 1998, and he subsequently became the Tribe’s trust resource and economic development director. As a director, Defendant worked independently with minimal supervision. In about 2004 or 2005, Defendant suggested the Tribe seek federal grant money to fund the development of an Integrated Resource Management Plan (IRMP) for each of the Tribe's bands. The agency approved and awarded the following five IRMP development grants. Instead of hiring an outside consultant and facilitator to help develop IRMPs for each band, Defendant created false invoices and purchase orders for four fictitious companies and represented to the Tribe that these companies had provided consulting and facilitating services for the IRMP development projects. Based on these representations, the Tribe issued checks made out to these nonexistent companies and, at Defendant’s direction, either mailed the checks to post office boxes that were actually owned or controlled by Defendant or gave them to Defendant to hand-deliver to the purported companies. Defendant was sentenced to sixty-eight months of imprisonment and ordered to pay $202,543.92 in restitution to the Tribe. On appeal, he challenged his convictions on the mail fraud, wire fraud, and money laundering counts. He also challenged the length of his sentence and the amount of restitution awarded to the Tribe. Upon review, the Tenth Circuit found the trial court miscalculated defendant's sentence and restitution amount. It reversed and remanded for recalculation. The Court affirmed in all other respects, finding no reversible error. View "United States v. Zander" on Justia Law

The Pueblo of Jemez brought suit against the United States under the federal common law and the Quiet Title Act (QTA), seeking to quiet its allegedly unextinguished and continuing aboriginal title to the lands of what was known as Valles Caldera National Preserve. The government filed a motion to dismiss for lack of jurisdiction under Fed. R. Civ. P. 12(b)(1) and for failure to state a claim under Fed. R. Civ. P. 12(b)(6). The district court held it lacked subject matter jurisdiction as a matter of law and dismissed the action pursuant to Rule 12(b)(1). It reasoned that sovereign immunity barred the action based on its conclusion that the Jemez Pueblo’s title claim against the United States accrued in 1860 when the United States granted the lands in question to the heirs of Luis Maria Cabeza de Baca (the Baca heirs). The claim thus fell within the exclusive jurisdiction of the Indian Claims Commission Act (ICCA), which waived sovereign immunity and provided a cause of action to all Indian claims against the government that accrued before 1946 so long as they were filed within a five year statute of limitations period. Because the claim was not so filed, it became barred by sovereign immunity. The Pueblo appealed, arguing that its aboriginal title was not extinguished by the 1860 grant to the Baca heirs and that its claim for interference with its Indian title did not accrue until 2000, after the United States acquired an interest in the Valles Caldera and began interfering with the Jemez Pueblo’s access to the land. Upon careful consideration of the arguments made on appeal, the Tenth Circuit reversed and remanded for further proceedings: "This appeal is not about whether the Jemez Pueblo holds aboriginal title. On remand, the Jemez Pueblo will have to prove that it had, and still has, aboriginal title to the land at issue in the case. This appeal concerns whether the 1860 Baca grant extinguished the Jemez Pueblo’s alleged aboriginal title to the lands which are the subject of this action. We hold it did not and the district court erred in concluding, as a matter of law, the 1860 Baca grant itself provided a pre-1946 claim against the United States the Jemez Pueblo could have brought under the ICCA." View "Pueblo of Jemez v. United States" on Justia Law

Nearly forty years ago the Ute Tribe filed a lawsuit alleging that Utah and several local governments were unlawfully trying to displace tribal authority on tribal lands. After a decade of proceedings at the district court and on appeal, the Tenth Circuit agreed to hear the case en banc. In the decision that followed, "Ute III," the court ruled for the Tribe and rejected Utah's claim that congressional action had diminished three constituent parts of Ute tribal lands (the Uncompahgre Reservation, the Uintah Valley Reservation, and certain national forest areas. When the Supreme Court denied certiorari, that "should have been the end of the matter." State officials chose "to disregard the binding effect of the Tenth Circuit decision in order to attempt to relitigate the boundary dispute in a friendlier forum" by continuing to prosecute tribal members in state court for conduct within the boundaries recognized by Ute III. Utah argued to the Utah Supreme Court that Ute III did not diminish tribal territory did diminish at least a part of the Uintah Valley Reservation. The Court agreed, as did the U.S. Supreme Court (despite having denied certiorari to "Ute III"). The issue of what to do with the mandate of "Ute III" remained: keeping it in place could leave the United States Supreme Court's decision in Hagen to control only cases arising from Utah state courts and not federal district courts. In "Ute V," the Tenth Circuit elected to recall and modify Ute III's mandate. On appeal, Utah sought to diminish parts of the national forest and Uncompahgre lands. "Ute V" rejected this request. The Tribe filed suit in federal court, seeking a permanent injunction prohibiting the State and its counties from pursuing criminal prosecutions of Indians in state court for offenses arising in areas declared by Ute III and V to be Indian country, and prohibiting the State and its subdivisions from otherwise relitigating matters settled by those decisions. Before the Tenth Circuit in this matter were three interlocutory (but immediately appealable) collateral orders this latest litigation has spawned: (1) the Tribe's request for a preliminary injunction; (2) the Tribe's claim of immunity from the counterclaims; and (3) Uintah County's claim of immunity from the Tribe's suit. In all three decisions the district court denied the requested relief. But the Tenth Circuit found Tribe's arguments on all three points as "well taken." The district court should have issued a preliminary injunction; the Tribe was shielded by sovereign immunity; and Uintah County was not. View "Ute Indian Tribe v. Utah" on Justia Law