FILED FOR PUBLICATION MAY 13 2005 CATHY A. CATTERSON, CLERK UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

JAMES R. SMITH, No. 03-35306 Plaintiff - Appellant, D.C. No. CV-02-00055-LBE v. ORDER SALISH KOOTENAI COLL; COURT OF APPEALS OF THE CONFEDERATED SALISH AND KOOTENAI TRIBES OF THE FLATHEAD RESERVATION, Defendants - Appellees.

Before: SCHROEDER, Chief Judge.

Upon the vote of a majority of nonrecused regular active judges of this court, it is ordered that this case be reheard by the en banc court pursuant to Circuit Rule 35-3. The three-judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court.