Selected Indian Law Cases: 2002-2003 Term
Four Indian law cases have been decided by the Supreme Court in the 2002-2003 term.
Grutter v. Bollinger
(This is not an Indian law case but is of significant importance to the Indian community.)
Docket No. 02-241
Paiute Tribe v. County of Inyo, Ninth Cir.,
291 F.3d 549. Under United States v. James, 980 F.2d
1314 (9th Cir. 1992), search warrant against Indian tribe and
tribal property violated tribe's sovereign immunity; district
attorney and county sheriff violated Fourth Amendment when they
executed search warrant to seize tribal property held on tribal
land, both of which were outside their jurisdiction, and such
violation is actionable under 42
U.S.C. § 1983; at time search warrant was obtained, it
would have been clear to reasonable officer in Ninth Circuit that
there was no jurisdictional grant authorizing county officers
to search and seize tribal property as part of criminal prosecution
of individual Native American, and, therefore, district attorney
and sheriff are not entitled to qualified immunity.
Supreme Court to consider limit of state authority on Indian land (San Francisco Chronicle) 3/29/0
Subjects: Mineral rights -- Indian Mineral Leasing Act (25 USC 396a et seq.); Mineral Rights -- Claims against the United States; Mineral rights -- Leasing.
Did court of appeals properly hold that United States
is liable to Navajo Nation for up to $600 million in damages for
breach of fiduciary duty in connection with secretary of interior's
actions concerning Indian mineral lease, without finding that
secretary had violated any specific statutory or regulatory duty
established pursuant to Indian Mineral Leasing Act?
Petition for certiorari filed 3/15/02. Petition granted
6/03/02. Argued 12/02/02. Decided 3/04/03.
The Supreme Court, Justice Ginsburg, held that Tribe's claim for
compensation did not derive from any liability-imposing provision
of Indian Mineral Leasing Act (IMLA) or its implementing regulations.
*Holding below: Navajo Nation v. United States. Fed. Cir., 263 F. 3d. 1325. By suppressing deputy assistant secretary for Indian affairs' decision to increase royalty rate on Indian coal lease to reasonable level after meeting secretly with lessee and adopting lessee's position, secretary of interior acted in direct contravention of Indian Mineral Leasing Act's charge to obtain for Indians maximum return for their minerals and breached government's fiduciary duty, action that was within jurisdiction of Court of Federal Claims and subject to remedy by assessment of damages resulting from breach of trust.
Subject: Trust relation -- Breach.
* Issue: Does Pub. L. No. 86-392 (1960) authorize award of money damages against United States for alleged breach of trust in connection with described property?
Petition for certiorari filed 1/22/02. Petition for certiorari
granted 4/22/02. Argued 12/02/02. Decided 3/04/03.
The Supreme Court, Justice Souter, held that United States's breach
of fiduciary duty to maintain and preserve trust property gave rise
to substantive claim for money damages under the Indian Tucker Act.
Mountain Apache v. United States Fed. Cir., 249
F.3d. 1364, Pub. L. No. 86-392 (1960), which provided that
Fort Apache military post shall be "held by the United States in trust
for the White Mountain Apache Tribe, subject to the right of the Secretary
of the Interior to use any part of the land and improvements for administrative
or school purposes for as long as they are needed for that purpose,"
created enforceable fiduciary relationship between United States and
tribe with respect to buildings over which United States exercised
control to exclusion of tribe, breach of which gives rise to cognizable
claim for money damages.
Subject: Submerged lands and wetlands.
History: Motion for leave to file complaint granted 6/12/00.
Proposed supplemental decree of 6/19/00 approved and entered 10/10/00.
Special Master appointed 10/16/00.
Motion for Alaska to file amended complaint granted 01/08/01.
Amended complaint and answer are referred to the Special Master 3/5/01.
Motion of Franklin H. James, et al., for leave to intervene is referred to the Special Master 4/30/01.
Motion of the Special Master for fees and reimbursement of expenses is granted, and the Special Master is awarded a total of $12,963.14 for the period October 16, 2000 - April 16, 2001, to be paid equally by the parties 5/14/01.
Supreme Court Pleadings: On motion for leave to intervene and file answer. Brief for the United States.
(1) Does Tenth Circuit decision set precedent that allows tribes
to single-out and violate nonmembers' constitutional rights? (2) Did
district court incorrectly interpret this court's rule regarding requirement
to exhaust remedies?
History: Petition for certiorari was filed on 6/18/2003.
*Holding below: Kennedy v. Hughes, 60 Fed. Appx. 734, 10th Cir., Plaintiffs' claims having been resolved on merits by tribal court, plaintiffs do not satisfy test of Dry Creek Lodge Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1982), which recognized limited exception to holding of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), that there is no private cause of action under Indian Civil Rights Act except under ICRA's habeas corpus provision, and thus plaintiffs' claims alleging violation of their civil and constitutional rights as protected by ICRA were properly dismissed for lack of subject matter jurisdiction or failure to state claim upon which relief may be granted.
v. United States
Does federally recognized Indian tribe, whose present power to
prosecute tribal offenses was established by act of Congress, prosecute
as sovereign separate from federal government for purposes of dual
sovereignty exception to Fifth Amendment's double jeopardy clause?
History: Petition for certiorari was filed on 6/10/2003.
States v. Long, 2003
7th. cir. The United States District Court for the Eastern District
of Wisconsin, Lynn Adelman, J., 183
F.Supp.2d 1106, dismissed the indictment. Government appealed.
Congress's 1973 restoration of Native American tribe's sovereign status
is not mere delegation of federal power to tribe and, therefore, tribe
is separate sovereign for purposes of dual sovereignty exception to
Fifth Amendment's double jeopardy clause; person prosecuted in tribal
court could be subsequently prosecuted in federal court for same offense.
Mountain Rancheria v. American Vantage Companies
*Issues: Are state law claims for breach of contract brought against Indian tribe by private gaming management company, involving matters integrally related to tribe's control over its gaming operations, completely preempted by IGRA and pursuable only in federal court?
History: Petition for certiorari was filed on 6/2/2003.
Vantage Companies v.Table Mountain Rancheria, 126
Cal.Rptr.2d 849, Consultant's contract with Indian tribe
to provide technical assistance, training, and advice to tribe in operation
of its gaming activities, and consultant's agreement with tribe to terminate
prior contract to manage tribe's casino, were determined by National
Indian Gaming Commission not to require approval of its chairman, and
thus consultant's state law causes of action against tribe for breach
of each contract and seeking money damages as sole remedy are not preempted
by Indian Gaming Regulatory Act, under which regulation of contracts
is limited to management contracts and agreements collateral thereto.
*Issues: (1) Does Navajo Nation qualify as "territory," or "possession," or federal independent contractor, for purposes of 28 U.S.C. § 1738 full faith and credit and comity enforcement of Navajo Nation orders by this court by way of extraordinary writ of mandamus? (2) Does respondents' "unified defense" so contradict rules of ethical representation that petitioners are denied due process and respondents should be prohibited from using unified defense in federal courts by extraordinary writ of prohibition by this court?
History: Petition for certiorari was filed on 5/28/2003.
below: Petition for writ of mandamus asking Tenth Circuit to vacate
and replace its decision upholding dismissal of certain claims seeking
enforcement of Navajo court orders and remanding others for determination
of Navajo court jurisdiction, MacArthur
v. San Juan County, Utah, 309
F.3d 1216 (2002), cert. denied, 71 U.S.L.W. 3750 (U.S. June
2, 2003) (Nos.
amounts to untimely petition for rehearing and is denied; petition for
mandamus to direct district court either to recuse or to follow different
directions than those given in Tenth Circuit's 2002 decision is denied
because petitioners, who may file appeal from any judgment adverse to
them, have other adequate means to attain relief they desire and thus
are not entitled to mandamus relief.
*Issues: Coming soon
History: Petition for certiorari was filed on 5/9/2003.
v. Shook (Briefs),
Mont. 347, Montana Supreme Court. The Supreme Court, Nelson,
J., held that: (1) regulation was rationally tied to fulfillment of
obligations to Indians, such that it did not violate equal protection,
and (2) state law, which includes Indian treaties reserving hunting
or fishing rights to the respective tribes, provided authorization for
promulgation of the regulation.
v. United States
(1) Are previous opinions of this court, applying canons of treaty
construction to construe language "the right of taking ... in
common with citizens of the territory" in Article III, Paragraph
2, of Treaty
with Yakamas of 1855 (12 Stat. 951), and finding that "right
... in common with" language reserved to Yakama specific and
special rights to take fish, in direct conflict with opinions of Ninth
Circuit in this case finding that identical language of same treaty
article provided Yakamas with no special and specific rights as to
travel on public highways? (2) Is opinion below, finding that terms
"in common with" and "right to travel" in Article
III provide Yakamas no rights, in direct conflict with this court's
opinion in Washington
v. Washington State Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979),
construing same language to grant specific rights to Yakama Indians?
(3) Does reasoning of opinion of this court in Tulee
v. Washington, 315 U.S. 682 (1942), construing "in
common with" language of Article III, Paragraph 2, of Treaty
with Yakama of 1855 (12 Stat. 951) as reserving to Yakama tribal
members right to take fish without payment for fees for that right,
conflict with court of appeals' ruling that identical language of
Article III, Paragraph 1, of treaty regarding right of Yakama Indians
to haul tribally produced goods to market on public highways free
of federal diesel and heavy vehicle use tax, provided no similar exemption?
(4) Is court of appeals' opinion requiring that Indian treaty must
contain "express exemptive language" on its face before
it may qualify Indian for federal tax exemption in direct conflict
with prior rulings of this court in Choate
v. Trapp, 224 U.S. 665 (1912), Squire
v. Capoeman, 351 U.S. 1 (1956), and Chickasaw
Nation v. United States, 534 U.S. 84, 70 U.S.L.W. 4020 (2001),
holding that such language need only be "clearly expressed,"
with all doubtful terms and expressions construed in favor of Indians?
History: Petition for certiorari was filed on 4/22/2003.
v. United States. 9th cir. 302
F.3d 1074. Language in 1855 Yakama Treaty stating that "free
access from the [reservation] to the nearest public highway, is secured
to [the Yakama]; as also the right in common with citizens of the United
States, to travel upon all public highways," does not provide express
exemptive language from which court can discern intent to exempt Yakama
from generally applicable federal heavy vehicle and federal diesel fuel
taxes, and thus, member of federally recognized Indian tribe who lives
and works on reservation is subject to federal heavy vehicle and diesel
fuel taxes for hauling timber that was cut on reservation to off-reservation
markets using diesel fuel trucks that exceed 55,000 pounds gross vehicle
Nation of Oklahoma v. Thompson
*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.
Tribe v. So. Florida, Eleventh Cir., 280
F.3d 1364. South Florida Water Management District's operation,
in interest of flood prevention, of pump station, which pumps water
collected by canal--runoff from water basin and seepage through levees--into
water conservation area, is cause-in-fact of addition of pollutants
to water conservation area, because polluted waters from canal would
not normally flow into water conservation area, and thus, release
of water caused by pump station's operation constitutes addition of
pollutants from point source, for which National Pollutant Discharge
Elimination System permit under Clean Water Act is required.
& Fox Tribe of Mississippi in Iowa v. Iowa Management &
*Holding below: Iowa Management & Consultants v. Sac & Fox Tribe of the Mississippi in Iowa, Iowa Supreme Court, 656 N.W.2d 167. State court has subject matter jurisdiction over (i) consulting firm's demand, under arbitration clause of its contract with Indian tribe, to compel arbitration of firm's claims for compensation under contract, and (ii) tribe's federal defenses to effort to compel arbitration; case is remanded to resolve genuine issues of material fact with respect to tribe's challenge to validity of entire agreement, including arbitration clause, based on failure to secure approval of contract by National Indian Gaming Council as required by section of Indian Gaming Regulatory Act, 25 U.S.C. § 2711, that requires NIGC approval of all management contracts to which tribe is party.
*Holding below: Saucerman v. Norton (unreported), 9th Cir. 2002 WL 31557880. Former permittees' Administrative Procedure Act suit against Indian tribe that evicted them from their cabins on Indian reservation is barred by Indian lands exception to Quiet Title Act, 28 U.S.C. § 2409a, which expressly reserves sovereign immunity in disputes involving property held in trust for Indian tribes as long as government has colorable claim regarding its title as trustee to land at issue; government established colorable claim of title as trustee to land at issue, based on Interior Department solicitor's opinion recognizing establishment of reservation and secretary's authority to grant equitable title of disputed lands to tribe, statute authorizing secretary to designate reservation lands for construction of dam, and case law recognizing tribe and reservation.
Juan County, Utah v. Riggs
v. San Juan County, Utah, 10th Cir., 309
In lawsuit brought by employees of county health clinic
under contract with federal Indian Health Service to provide
health care to members of Navajo community, seeking enforcement
of Navajo court preliminary injunction premised on various
violations of Navajo law, dismissal of employees' claims against
county and various health district defendants on basis of
sovereign immunity from suit in Navajo tribal court is vacated
and case is remanded to determine threshold question of whether
v. United States, 450
U.S. 544 (1981), divests Navajo court of power
to adjudicate employees' claims.
v. San Juan County, Utah, 10th Cir., 309
In lawsuit brought by employees of county health clinic under
contract with federal Indian Health Service to provide health
care to members of Navajo community, seeking enforcement of
Navajo court preliminary injunction premised on various violations
of Navajo law, dismissal of employees' claims against county
and various health district defendants on basis of sovereign
immunity from suit in Navajo tribal court is vacated and case
is remanded to determine threshold question of whether Montana
v. United States, 450
U.S. 544 (1981), divests Navajo court of power
to adjudicate employees' claims.
v. San Juan County
v. San Juan County, 10th Cir., 10/7/02. Contractual and
consensual relationships between Navajo tribe and, respectively,
insurer of and attorney for Utah county health clinic under
contract with federal Indian Health Service to provide health
care to members of Navajo community were too attenuated to
justify tribal court's exercise of jurisdiction over insurer
and attorney, both nonmembers of tribe, and thus, federal
district court properly dismissed claims against insurer and
attorney brought by employees of clinic seeking enforcement
of Navajo court preliminary injunction premised on various
violations of Navajo law; with respect to county itself and
various health district defendants in employees' suit, case
is remanded to federal district court to determine whether
Montana v. United States, 450 U.S. 544 (1981), divests
Navajo court of power to adjudicate clinic employees' claims.
County v. Gobin
(1) Does express in rem jurisdiction over reservation fee lands
established by Congress in Sections 5 and 6 of Indian General
Allotment Act and recognized in County of Yakima v. Confederated
Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992),
allow Snohomish County to zone or impose any land use regulations
against fee land located on Tulalip Indian Reservation when
land is owned by member of Tulalip Tribes? (2) In light of diminished
tribal authority over reservation fee lands recognized in Brendale
v. Confederated Tribes and Bands of the Yakima Indian Nation,
492 U.S. 408 (1989), and minimal federal and tribal interests
in maintaining exclusive tribal jurisdiction over private open-market
development, do legitimate regulatory interests of state and
local government allow Snohomish County to zone or impose any
land use regulations against reservation fee lands or tribal
members developing those lands when land is owned by member
of Tulalip Tribes?
v. Snohomish County, Ninth Cir., 304
F.3d 909, Congress did not expressly authorize plenary
state in rem jurisdiction over Indian reservation land owned
in fee simple by registered members of tribe when it made such
land freely alienable and encumberable, and thus, absent exceptional
circumstances not present here, county may not assert land use
jurisdiction over proposed development on such land.
(1) Should courts resolve issues of tribal sovereign immunity
by applying uniform principles of federal law? (2) Under federal
law, does governing body of Indian tribe have authority to waive
tribe's sovereign immunity in cases in which governing body
is expressly authorized to enter into contracts on tribe's behalf?
(3) Is Pit River Indian Tribe barred from asserting sovereign
immunity from suit on contract when contract was duly authorized
and executed by tribal council and contract itself contains
waiver of tribe's immunity from suit?
Below: Lobo Gaming Inc., v. Pit River Tribe of California,
Cal App. Ct. (unpublished) 2002
WL 922136. Contractor brought action against Indian
tribe for breach of lease agreement, pursuant to which tribe
borrowed funds to construct two casinos and leased gaming machines
and furnishings. The Superior Court, Shasta County, No. 140106,
granted tribe's motion to quash service. Contractor appealed.
The Court of Appeal, Raye, J., held that agreement's purported
waiver of sovereign immunity was invalid.
Once lease of Indian lands to non-Indian party has received
federal approval under 25 U.S.C. §§ 81 and 415, does
that non-Indian party have prudential standing to challenge
federal agency's attempt to void lease by unilaterally withdrawing
previous federal approval?
Sioux Tribe v. McDivitt. Eighth Cir., 286
F. 3d. 1031. Non-Indian lessee of Indian tribal trust
property on which lessee plans to construct pork production
facility lacks standing to challenge Bureau of Indian Affairs
decision voiding lease on ground that Finding of No Significant
Impact was issued in violation of National Environmental Policy
Act; although lessee has demonstrated constitutionally required
elements of standing--injury that is fairly traceable to actions
of defendant and that can be redressed by favorable court ruling--its
interest, being purely economic, falls outside zone of interests
sought to be protected by NEPA and National Historic Preservation
Act, which lessee claims were violated by BIA's voiding of lease.
Tribe of Texas v. America Tobacco Co.
History: Petition for certiorari was filed on 11/12/02. Petition for certiorari was denied on 1/21/03.
*Holding below: Fifth Circuit (Unreported and no opinion from District Court or Court of appeals. See Westlaw table at: 46 Fed.Appx. 225). Indian tribe's sovereign status and its allegation that tobacco-related injuries to tribal members injured tribe itself, by adversely affecting tribe's size and health and well-being of its members, are insufficient to establish "direct injury" needed to support tribe's fraud, racketeering, product liability, negligence, and warranty claims against tobacco manufacturers.
Alaska Native Claims Settlement Act (43 USC 1601 et seq.);
Discriminatory dividend payments; Removal.
History: Petition for certiorari was filed on 8/19/02. Petition was denied on 1/13/03.
below: Ninth Cir., (unpublished, but available for a fee on
Westlaw.com at 31
Fed. Appx. 586.) District court did not err in denying
motion of plaintiff shareholders in suit against Alaska corporation
organized pursuant to Alaska Native Claims Settlement Act to remand
action to state court; notwithstanding plaintiffs' contention
that district court lacked removal federal question jurisdiction
over suit, district court did have subject matter jurisdiction
over case, because complaint raised substantial federal question
of whether Section 7(r) of ANCSA authorizes regional corporation
established pursuant to that statute to pay dividends on discriminatory
basis to Native leaders who were original shareholders in such
Lands -- Quiet title; Lands -- Trespass.
*Holding below: United States v. Byrne, Ninth Cir., 291 F.3d 1056. In determining whether it had jurisdiction over quiet title and ejectment action and, if so, whether it properly determined that property in question is located in California rather than Arizona, district court's analysis should have commenced with date on which United States patented disputed lands to California in 1905, and not with pre-1905 avulsive movements of Colorado River, and thus, given undisputed testimony that both accretion and avulsion occurred in relevant area after that date, remand is required to permit district court to conduct whatever proceedings it deems necessary for re-analysis using correct premise; Swamp and Overflowed Lands Act invested states in praesenti with inchoate title to those lands falling within description of act, to be perfected as of date of act when land should be identified and patent issued, and thus it was only when secretary of interior identified and patented land granted under Swamp Act that fee simple title vested in state and state's title became perfect.
*Holding below: Flat Center Farms v. State of Montana, MT Supreme Ct., 310 Mont. 206, 49 P.3d 578. Flat Center Farms Inc. is tribally chartered corporation owned and operated by Indians, conducts business entirely on Fort Peck Reservation, and does not "carry on business" in Montana, and therefore lower court did not err in applying long-standing rule--that state lacks power to tax Indian income generated from on-reservation activities absent express authorization by Congress--and in concluding that Montana corporation license tax may not be imposed on Flat Center Farms Inc.
Subjects: Tribal courts -- Jurisdiction; Gaming -- Contracts; Gaming -- Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.).
*Issues: (1) Do Tamiami decisions, which interpret Federal Arbitration Act as allowing courts "to look through" arbitration to underlying federal claims to find jurisdiction, and which find substantial federal question based on federal statute that provides no private right of action, represent unprecedented expansion of federal question jurisdiction that conflicts with majority of circuits that have decided issues? (2) Does Eleventh Circuit's rejection of Miccosukee Tribal Court orders, which stayed arbitration and vacated award, conflict with unbroken line of U.S. Supreme Court precedent requiring deference to tribal courts and precluding relitigation of issues resolved in tribal court, and should this court grant certiorari to decide unresolved question in Nevada v. Hicks, 533 U.S. 353, 69 U.S.L.W. 4528 (2001), regarding scope of tribal court jurisdiction over nonmembers?
History: Petition for certiorari was filed on 9/23/02. Petition was denied on 11/18/02.
*Holding below: See case below at: Tamiami Partners Ltd. v. Miccosukee, 35 Fed. Appx. 855 (Unreported, but table available on Westlaw.com, a fee-based service.) See related case: Tamiami Partners Ltd. v. Miccosukee, Eleventh Cir., 177 F. 3d. 1212 (1999). District court properly ordered enforcement of 1993 arbitration award that ordered Indian tribe that had terminated contract with partnership for operation of gambling facility on reservation to either reinstate partnership or pay damages; notwithstanding tribe's contention that district court lacked jurisdiction to hear case, appeals court holds for third time that district court has jurisdiction to hear case because it implicates Indian Gaming Regulatory Act; tribal court did not have authority to stay arbitration or vacate award; by entering agreement that provided for arbitration under oversight of state or federal courts, tribe waived immunity to federal court jurisdiction.
Subjects: Civil rights -- Race discrimination; Gaming; Conspiracy; Voting -- Rights.
*Issues: Is private conspiracy by non-Indian gaming corporations actionable under 42 U.S.C. § 1985(3), when it deprives petitioners of right to vote because petitioners are Indians and members of tribal political faction?
History: Petition for certiorari was filed on 8/19/02. Petition was denied 10/21/02.
*Holding below: Ninth Cir., (Unpublished but available on Westlaw.com for a fee at 35 Fed.Appx. 562) Court affirms district court's ruling that plaintiff tribal members' allegations that defendant gaming contractors contributed money to opposing political faction and referred to plaintiffs as "half blood Indians" suggested at most that defendants' conduct was motivated by political beliefs and not racial animus, amounted to nothing more than naked allegation of racial discrimination, and thus failed to state race-based conspiracy claim under 42 U.S.C. § 1985(3).
Subjects: Tribal courts -- Jurisdiction; Civil jurisdiction, Federal -- Exhaustion of tribal remedies; Tribal courts -- Appeal and Review.
*Issues: None provided
History: Petition for certiorari filed (in forma pauperis) 4/26/2001. Petition was denied 10/07/02.
below: Tang v. Northern Cheyenne Tribe, Ninth Cir., (Unreported)
31 Fed.Appx. 438, The federal courts lack jurisdiction to
consider Tang's claims against the Northern Cheyenne Tribe
because Tang has not yet exhausted his remedies by appealing
tribal jurisdiction to the tribal appeals court. See Allstate
Indem. Co. v. Stump, 191
F.3d 1071, 1073 (9th Cir.), amended by 197 F.3d
1031 (9th Cir.1999).
Subjects: Employment -- Indian preference; Employment -- Discrimination by employers; Sovereign immunity -- Tribal.
*Issues: (1) Does tribal sovereign immunity render Title VII of 1964 Civil Rights Act impotent in claims between non-member employee and nonmember employer engaged in business on reservation when tribe has passed legislation mandating discriminatory employment practices? (2) Can tribal officials be sued as indispensable and necessary parties for purpose of prospective relief in situations in which tribal nations pass and enforce legislation that conflicts with federal law regarding employment and exceeds scope of tribe's sovereign powers?
History: Petition for certiorari was filed on 5/30/02. Petition denied on 10/07/02.
*Holding below: Dawavendewa v. Salt River Agr. Imp. and Power District, Ninth Cir., 276 F.3d. 1150. In Hopi plaintiff's suit against lessee of Navajo Nation challenging lessee's enforcement of lease provision giving employment preference to members of Nation, Nation is necessary party because plaintiff cannot be accorded complete relief in Nation's absence, suit threatens to impair Nation's contractual interests, and any disposition of suit in Nation's absence threatens to leave lessee subject to substantial risks of incurring multiple or inconsistent obligations, but Nation cannot be joined because it has not waived its tribal sovereign immunity and Congress has not clearly abrogated tribal sovereign immunity in cases under Title VII of 1964 Civil Rights Act; plaintiff's suit was against lessee only, he specified no action by tribal officials performed in contravention of constitutional or federal statutory law, relief he seeks would operate against Nation as signatory to lease, and thus plaintiff may not circumvent Nation's sovereign immunity by joining tribal officials in its stead; both Nation and lessee could incur prejudice if decision were rendered in Nation's absence, no relief mitigates prejudice, no partial relief is adequate, and plaintiff may have alternative forum available via suit brought on his behalf by Equal Employment Opportunity Commission, and thus Nation is indispensable party whose absence requires dismissal of suit without prejudice.
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)?
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.
v. United States
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.
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.
Ste. Marie Tribe of Chippewa Indians v. Young
Sovereign immunity -- Tribal; Employment; Business and economic
development -- Contracts; Statutes -- State.
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.
Subjects: Tribes -- Federal recognition of; Cultural heritage -- History.
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.
Subjects: Gaming -- Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Tribal sovereignty and powers; State rights; Gambling -- Law and legislation.
(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.
* "Issues" and "Holding below" reproduced with permission from The United States Law Week on the Internet and print at: http://www.bna.com
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