                                                                             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.
