Petition for Certiorari has not been granted in an pending Indian law cases this term.

Subjects: United States. Indian Self-Determination and Education Assistance Act (25 USC 450 et seq.); Contracts; Cost; Self-determination.

*Issues: (1) Can federal government repudiate, without liability, express contractual commitments for which it has received valuable consideration, either by spending down discretionary agency appropriations otherwise available to pay its contracts, or simply by changing law and contracts retroactively? (2) Do government contract payment rights that are contingent on "the availability of appropriations" vest when agency receives lump-sum appropriation that is legally available to pay contracts--as is law of Federal Circuit under Blackhawk Heating & Plumbing Co. v. United States, 622 F.3d 539 (Ct. Cl. 1980)--or is government's liability calculated only at end of year after agency has spent its appropriations on other activities, as Tenth Circuit ruled below?

History: Petition for certiorari was filed on 4/03/03.

*Holding below: Cherokee Nation v. Thompson, 10th Cir., 11/26/03, 311 F.3d 1054. Provision of Indian Self-Determination and Education Assistance Act stating that "[n]otwithstanding any other provision in this subchapter, the provision of funds under this subchapter is subject to the availability of appropriations and the Secretary [of Health and Human Services] is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe," 25 U.S.C. § 450j-1(b), clearly expresses Congress's intent that provisions that obligate secretary to provide funding for various self-determination contracts or compacts, to operate programs previously operated by federal government, in amount equal to what would have been provided if HHS had continued to provide, in this case, health care services itself, as well as contract support costs (i.e., indirect costs incurred by tribe in carrying out self-determination contract), do not create entitlement on tribes' part--independent of appropriations to cover such amounts--to recover complete contract support costs incurred in connection with health care services, and thus federal government is not liable to tribes for contract support costs they incurred in administering expanded health programs after money had already been disbursed for years in question and no other appropriations were available.

Petition for certiorari was denied in the following twenty two Indian law cases.

Subjects: Tribal courts -- Jurisdiction; Civil jurisdiction, Federal -- Exhaustion of tribal remedies.

* Issues: 1) Should prudential, judge-made "tribal exhaustion" doctrine be expanded to displace statutory command of Federal Arbitration Act, 9 U.S.C. § 4, which creates juridical remedy in federal district court for enforcement of agreements to arbitrate? (2) Does Indian tribal court jurisdiction extend to civil suits arising out of alleged commercial relationships between members and nonmembers of tribe, when such assertions of jurisdiction are not necessary to protect tribal self-government or to control internal tribal relations--question left open by this court in Nevada v. Hicks, 533 US 353, 69 U.S.L.W. 4528 (2001)?

History: Petition for certiorari filed 5/22/02. Petition was denied on 10/07/02.

*Holding below: Bank One, N.A. v. Shumake, 5th Cir., 281 F.3d 507, District court's dismissal of bank's suit to compel arbitration of claims brought against it in tribal court by members of Mississippi Band of Choctaw Indians asserting that bank financed satellite system purchases through use of bogus credit cards and concealed material information with respect to credit transactions is affirmed, district court having properly determined that tribal exhaustion doctrine required giving tribal court first opportunity to rule on question of its jurisdiction.

Bay View Inc. v. United States
Docket No. 01-1863

Subjects: Alaska Native Claims Settlement Act (43 USC 1601 et seq.) -- Revenue sharing; Tribal property.

*Issues: (1) May Congress, in legislation enacted at request of one of parties to litigation, retroactively terminate vested property rights in transactions long completed without United States incurring liability under Fifth Amendment? (2) Did Federal Circuit violate standards set by this court in dismissing on pleadings petitioner's fact-intensive complaint of retroactive taking of its property rights by Congress? (3) Has court of appeals ignored plain meaning and congressional intent of key provision of ANCSA that requires Alaskan Regional Corporations to share with each other and then with Village Corporations "70 percent of all revenues received by each Regional Corporation from the timber resources and subsurface estate patented to it"? (4) Does decision of Federal Circuit in depriving over 200 Alaska villages of their share of revenues from sale of timber and mineral resources conflict with settled construction of ANCSA, and similar act, by Ninth Circuit and Alaska federal court?

History: Petition for certiorari was filed on 5/16/02. Petition was denied on 10/07/02.

*Holding below: Bay View v. United States Federal Cir., 278 F. 3d.1259. Proceeds from Alaska native corporations' sales of net operating loss deductions, arising from their sale of timber and other natural resources at less than their tax basis, did not constitute "revenues ... from the timber resources and subsurface estate[s]" that each "Regional Corporation" created by Alaska Native Claims Settlement Act is required by ANCSA to share with "Village Corporations" in its region, and thus Fifth Amendment's takings clause was not violated by retroactive 1995 amendment to ANCSA that exempted pre-1989 sales of NOLs from ANCSA's revenue sharing requirement.

Kornwolf v. United States
Docket No. 01-1534

Subjects: Environmental regulation -- Migratory Bird Treaty Act (16 USC 703); Environmental regulation -- Bald Eagle Protection Act (16 USC 668); Cultural resources; Eagle feathers.

*Issues: 1) Is Andrus v. Allard still good law despite its inconsistency with subsequent opinions of this court, almost unanimous criticism of commentators, and confusion it has promoted in lower courts? (2) Is it unconstitutional taking of private property to impose criminal sanctions on sale of innocuous, historically significant, antique Indian artifacts containing golden eagle feathers when petitioner's ownership of those artifacts predates statutory protection of golden eagle, there is no evidence that ban on sale substantially advances protection of golden eagle, and effect of ban is to destroy economic value of artifacts?

History: Petition for certiorari was filed on 4/11/02. Petition was denied on 10/07/02.

*Holding Below: United States v. Kornwolf, (PDF) Eighth Cir., 276 F.3d. 1014. Under Andrus v. Allard, 444 US 51 (1979), provisions of Bald and Golden Eagle Protection Act and Migratory Bird Treaty Act that ban sale of eagle feathers do not create unconstitutional taking when applied to sale of Indian artifacts containing eagle feathers that owner had acquired prior to effective dates of statutes.

Sault Ste. Marie Tribe of Chippewa Indians v. Young
Docket No. 01-1786

Subjects: Sovereign immunity -- Tribal; Employment; Business and economic development -- Contracts; Statutes -- State.

*Issues: (1) Did tribe waive its sovereign immunity such that it can be held liable for alleged breach of employment agreement--even though it was never party to agreement--based on state law doctrines extending liability to noncontractual parties? (2) Did tribe waive its sovereign immunity for purpose of subjecting itself to Michigan's judgment interest statute even though it never expressly agreed to subject itself to statute? (3) In actions against sovereign Indian tribes, can state courts vitiate federal law governing waivers of sovereign immunity, which requires such waivers to be express and unequivocal, by applying state law doctrines or statutes?

History: Petition for certiorari was filed on 6/3/02. Petition was denied on 10/07/02.

*Holding below: Young v. Sault Ste. Marie Tribe of Chippewa Indians, Mich. (unreported) 2001 WL 672070. Plain language of joint venture master agreement, which was signed by tribe, demonstrates that parties thereto intended that such agreement and other documents "executed and delivered at [c]losing," including employment agreement, be construed as one agreement, and thus (i) breach of employment agreement constitutes breach of joint venture master agreement, which explicitly waives tribe's sovereign immunity from suit to enforce that agreement and all agreements executed and delivered at closing, (ii) claim of breach was subject to arbitration under terms of joint venture master agreement, and (iii) tribe could be held liable for such breach; award of statutory interest from date arbitration award was issued through date judgment entered on award is satisfied is statutorily required by state law, despite tribe's contention that its waiver of sovereign immunity, even if it applies to claims of breach of employment agreement, does not apply to awards of postaward and postjudgment statutory interest.

Ramapough Mountain Indians v. Norton
Docket No. 01-1703

Subjects: Tribes -- Federal recognition of; Cultural heritage -- History.

*Issues: Can Bureau of Indian Affairs deny tribal descent by dismissing key pieces of evidence under conclusiveness standard, ignoring reasonable inferences, and discounting each piece of evidence in isolation without regard to cumulative weight of evidence?

History: Petition for certiorari filed 5/16/02. Petition was denied on 10/07/02.

*Holding below: Ramapough Mountain Indians v. Norton, D.C. Cir., 25 Fed.Appx. 2. (Unpublished) Assistant secretary for Indian Affairs reasonably concluded that group of people seeking federal recognition as Indian tribe failed to comply with regulation requiring it to show, as prerequisite for recognition, that its membership consists of individuals who descend from historical Indian tribe, documentation of such descent not having been offered and other evidence being limited.

Ysleta del Sur Pueblo v. Texas
Docket No. 01-1671

Subjects: Gaming -- Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Tribal sovereignty and powers; State rights; Gambling -- Law and legislation.

*Issues: (1) Does Indian Gaming Regulatory Act, instead of Pueblo's Restoration Act, govern gaming activities on reservation lands of Ysleta del Sur Pueblo? (2) If not, should gaming provisions of Pueblo's Restoration Act be interpreted consistently with this court's decision in California v. Cabazon Band of Mission Indians, 480 US 202 (1987), thus preventing grave miscarriage of justice?

History: Petition for certiorari was filed 5/13/02. Petition was denied on 10/07/02.

*Holding below: Unreported decision. Fifth Cir., 1/17/02. Summary judgment in favor of Texas in its action to enjoin gambling on Indian reservation and injunction directing Ysleta del Sur Pueblo to stop gambling activities at Speaking Rock Casino are affirmed for reasons stated by district court, namely that Pueblo's Restoration Act, which prohibits Pueblo from engaging in gaming activity that would not be permissible for ordinary citizen of Texas, precludes gaming activities at Speaking Rock Casino, which violate Texas Penal Code.

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