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U.S. Supreme Court Update

2001 - 2002 Term
Last updated 6/25/02

Cases Decided Cases Pending Petition for Certiorari Granted
Petition for Certiorari Pending Petition for Certiorari Denied


Two (2) Indian law cases have been decided by the Supreme Court in the 2001-2002 term.

Chickasaw Nation v. United States, Docket No. 00-50

Subjects: Gaming - Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Taxation - Federal

: Under applicable Indian-law canons of statutory construction, does IGRA, by 25 U.S.C 2719(d)(1)'s express incorporation of Chapter 35 of Internal Revenue Code, confer on Indian tribes conducting gaming operations same exemption from wagering taxes afforded to states by Chapter 35 of IRC?

History: Petition for certiorari filed 10/03/00. Certiorari granted 1/22/01. Case argued 10/02/01. Case decided 11/27/01.

Motion for petitioner to dispense with printing the joint appendix granted 3/19/01.

Holding: The US Supreme Court held that section 2719(d)(i) does not exempt tribes from paying the gambling-related taxes that chapter 35 imposes.
Holding Below: Chickasaw Nation v. United States , 208 F.3d 871 10th Cir., 4/5/00. Court of Appeals held that pull-tab games are considered "lottery" and so are a taxable "wager;" the Chickasaw Nation was considered a "person" and so subject to taxes; the IGRA did not preclude the imposition of federal wagering excise taxes; and finally, the self-government guarantee of the 1855 treaty between the US and Chickasaw Nation did not preclude the imposition of taxes in question. Second Holding Below: Choctaw Nation of Oklahoma v. United States, 210 F.3d 389. Using same reasoning as companion appeal of Chickasaw Nation, the appeals court determined that the IGRA does not preclude imposition of federal wagering excise taxes on wagers placed on Indian pull-tab games operated by tribe under IGRA on trust lands.

United States v. Little Six Inc., Docket No. 00-1115

*Issue: Does Section 20(d) of IGRA, 25 U.S.C. 2719(d) , exempt Native American tribes from wagering excise and occupational taxes imposed by Sections 4401 and 4411 of IRC?

Subjects: Gaming, Taxation

History: Petition for certiorari filed 1/10/01. Judgment vacated 12/03/01.

*Holding: The judgment is vacated and the case is remanded to the US Court of Appeals for the Federal Circuit for further consideration in light of Chickasaw Nation v. United States. Holding Below: Little Six, Inc. and Shakopee Mdewakanton Sioux (Dakota) Community v. United States 210 F.3d 1361 Fed. Cir. Court held that although tribal revenues from wagers placed on "pull-tab" games operated on Indian reservations are subject to federal excise tax and related occupational tax under Sections 4401 and 4411 of Internal Revenue Code, tribes are nevertheless exempt from such taxes under provision of Indian Gaming Regulatory Act, 25 U.S.C. 2719(d)(1), ambiguous language of which can reasonably be construed to exempt Indian pull-tab games from federal wagering taxes and therefore must, under Indian canon of construction, be construed in tribe's favor.

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There is one (1) pending Indian law case held over from 2000-2001 term.

Alaska v. United States, Docket No. 128 Original

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.

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Petition for Certiorari has been granted in two (2) Indian law cases

United States v. Navajo Nation, Docket No. 01-1375

Subjects: Mineral Rights - Indian Mineral Leasing Act (25 USC 396a et seq.); Mineral Rights - Claims Against the United States; Mineral Rights - Leasing

*Issues: 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'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?

History: Petition for certiorari filed 3/15/02. Petition granted 6/03/02. Current US Supreme Court docket information.

Supreme Court Pleadings: Petition for writ of certiorari.

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.

United States v. White Mountain Apache Tribe, Docket No. 01-1067

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?

History: Petition for certiorari filed 1/22/02. Petition for certiorari granted 4/22/02. Current US Supreme Court docket information

Supreme Court Pleadings: Petition of US Reply brief for the petitioner.

Holding Below: White 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.

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Petition for certiorari is pending in seven (7) Indian law cases
this term

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. Current US Supreme Court docket information.

Holding below: Young v. Sault Ste. Marie Tribe of Chippewa Indians, Mich. (unreported) App. 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.

Dawavendewa v. Salt River Project Agricultural Improvement and Power District, Docket No. 01-1762

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. Current US Supreme Court docket information.

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.

Bank One NA v. Shumake,
Docket No. 01-1732

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)?

: Petition for certiorari filed 5/22/02. Current US Supreme Court Docket information.

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.

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. Current US Supreme Court Docket information.

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. Current US Supreme Court Docket information.

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.

Tang v. Northern Cheyenne Tribe, Docket No. 01-1057

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. Current US Supreme Court docket information.

Holding 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).

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. Current US Supreme Court Docket information.

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.

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Petition for certiorari was denied in the following eighteen (18) Indian law cases.

Linneen v. Gila River Indian Community, Docket No. 01-1462

Subjects: Sovereignty - Tribal; Tribal Law Enforcement; Indian Country - Jurisdiction; Liberty

*Issues: Should tribal sovereign immunity be limited to extent necessary to provide petitioners with opportunity and mechanism for seeking redress for violation of their fundamental civil liberties?

History: Petition for certiorari filed 3/1/02. Petition for certiorari was denied 6/24/02.

Holding below: Linneen v. Gila River Indian Community, (PDF), 9th. Cir., 276 F.3d 489
District court's dismissal, on grounds of tribal sovereign immunity, of individuals' 42 U.S.C. 1983 lawsuit against Native American community and its officials, alleging that tribal ranger unlawfully detained and threatened them while they were walking dogs on Indian land is affirmed, alleged misconduct having occurred while ranger was on official duty.

Wisconsin v. Environmental Protection Agency, et al, Docket No. 01-1247

Subjects: Environmental Regulation - Watersheds and Wetlands; Environmental Regulation - Tribal Jurisdiction; Constitution, United States - Equal Footing Doctrine; Environmental Regulation - State Law; Environmental Regulation - Clean Water Act

*Issues: (1) Can Indian tribe possess inherent authority to regulate navigable waters within its reservation when, under equal footing doctrine, state holds and exercises sovereignty over such waters and submerged lands beneath them? (2) Does EPA's policy that Indian tribes possess inherent authority to regulate navigable waters within reservation, based on purely hypothetical concerns that state and federal regulation may not adequately curtail water pollution by nonmembers, contravene this court's precedents concerning second exception under Montana v. United States, 450 US 544 (1981), which require that tribe demonstrate actual threat to self-governance before it may be deemed to have inherent regulatory authority over nonmembers or resources not held by tribe?

History: Petition for certiorari was filed 2/25/02. Petition denied 6/3/02.

Holding below: Wisconsin v. E.P.A., Seventh Cir., 266 F.3d 741, Environmental Protection Agency's decision under Section 518(e) of Clean Water Act to treat Indian tribe as state for purposes of promulgating water quality standards, based on agency's determination that tribe has inherent authority over water within its reservation regardless of ownership, and on tribe's showing that impairment of reservation waters would affect tribe's political integrity, economic security, or health or welfare, is not arbitrary or unreasonable interpretation of statute or regulations, even though resulting authority may affect off-reservation activities; even assuming for purposes of this appeal that, pursuant to equal footing doctrine, state has title to lakebeds within reservation, it was reasonable for EPA to determine that ownership of lakebeds did not preclude federally approved regulation by tribe of quality of water, and that determination is upheld.

Missouri River Services, Inc. v. Omaha Tribe of Nebraska, Docket No. 01-1149

Subjects: Gaming - Contracts; Jurisdiction

* Issues: (1) May court vacate arbitration award that satisfies all criteria set forth in Federal Arbitration Act but (assertedly) violates extra-statutory requirements imposed by court? (2) May federal court to which arbitration award has been submitted for confirmation independently determine question possessing jurisdictional implications when jurisdictional question is inextricably intertwined with merits of case and necessarily was resolved by arbitrator?

History: Petition for certiorari was filed 2/04/02. Petition was denied 5/13/02.

Holding below: Missouri River Services, Inc., v. Omaha Tribe of Nebraska, (PDF) 8th Cir., 267 F 3d. 848. Agreement under which Indian tribe gave company exclusive right to build and operate gaming facility on tribal land clearly restricted facility's location to Thurston County, Nebraska, limited gaming in facility to bingo and bingo-related activities, and provided that any monetary award against tribe could be satisfied only out of such facility or tribe's share of future net operating profits under agreement, and thus, in arbitration proceeding brought by company seeking reimbursement of its capital investment after facility failed, arbitrator's award ordering payment to company from proceeds of tribe's other gaming operation in Iowa, or from any other funds tribe may elect to use, failed to draw its essence from agreement and therefore must be strictly limited to profits of, and property purchased for, Nebraska facility.

Warrior v. Boxx, Docket No. 01-1249

Subjects: Tribal Courts - Jurisdiction; Civil Jurisdiction, Federal - Exhaustion of Tribal Remedies

*Issues: (1) Must tribal court defendant exhaust tribal remedies prior to initiating challenge to tribal court jurisdiction in federal courts when action arises out of private consensual relationship with tribal member? (2) Does tribal court have jurisdiction over cause of action between tribal member and non-Indian arising from private consensual social relationship?

History: Petition for certiorari filed 2/19/02. Denied 4/29/02 Current US Supreme Court docket information

Holding below: Boxx v. Warrior,(PDF) 9th Cir., 265 F. 3d. 771. Tribal court lacked jurisdiction over tribal member's negligence action, arising from automobile accident on non-Indian fee land within reservation, against non-Indian driver with whom member had consensual social relationship, and thus non-Indian was not required to exhaust tribal remedies before seeking federal court injunction barring member from pursuing tribal court action.

Spirit Lake Tribe v. North Dakota, Docket No. 01-1185

Subjects: Lands - Quiet Title; Lands - Contested and Disputed Lands; Division of Indian Affairs - Officials and Employees

*Issues: (1) When Congress claims federal ownership in trust and federal employee asserts federal ownership in fee, is federal employee's assertion federal "claim to land" for purposes of statute of limitations contained in Quiet Title Act, 28 U.S.C. 2409a(g)? (2) If federal employee's act does constitute claim for purposes of Quiet Title Act, can federal associate solicitor abandon federal employee's unlawful claim and reclaim land in trust? (3) When district court grants defendant's motion for summary judgment on jurisdictional issue and does not resolve disputed issues of fact, does court of appeals have authority to resolve disputed issues of fact against plaintiff?

History: Petition for certiorari filed 2/11/02. Petition denied 4/15/02. Current US Supreme Court docket information

Holding below: Spirit Lake Tribe v. State of North Dakota, (PDF), 8th Cir., 262 F.3d. 732. Indian tribe knew or should have known in 1971 when federal government received quitclaim deed from North Dakota for portion of disputed lake that there was cloud over tribe's claim that lake was part of reservation under 1867 treaty, and thus tribe's 1986 suit under Quiet Title Act asserting its interest in lake was time barred by statute's 12-year limitations period; 1976 memorandum authored by associate solicitor for Division of Indian Affairs within department of interior stating that lake was wholly within reservation did not abandon government's interest in lake because, among other things, government cannot abandon property without congressional authorization; even if associate solicitor had authority to bind government, he did not act in manner that suggested he was establishing position for government, and thus he did not abandon government's claim to lake; district court's grant of summary judgment to government was improper, because court lacked jurisdiction under Quiet Title Act to hear time-barred case and thus should have dismissed government for lack of jurisdiction rather than entering judgment in government's favor; district court did not abuse its discretion by dismissing tribe's claims against state and private landowners due to its inability to join federal government, which was indispensable party.

Alabama and Coushatta Indian Tribes of Texas v. Comstock Oil & Gas Inc., Docket No. 01-1101

Subjects: Mineral Rights - Leasing; Mineral Rights - Indian Mineral Leasing Act (25 USC 396a et seq.); Mineral Rights - Indian Mineral Development Act (IMDA 2101-2108); Sovereign Immunity - Tribal; Sovereignty - Sovereign Immunity - Tribal Officers; Ex parte Young (209 US 123 (1908))

Issues: (1) Does tribe's sovereign immunity from suit extend to actions for prospective equitable relief? (2) Do tribal officials acting within lawful authority of their office share tribe's immunity from suit in actions for prospective equitable relief except as provided by doctrine of Ex parte Young, 209 US 123 (1908)? (3) Does suit against tribal officials to declare in full effect oil and gas leases subject to Indian Mineral Development Act, or Indian Mineral Leasing Act, meet requirements of Ex parte Young doctrine?

History: Petition for certiorari was filed 1/24/02. Certiorari was denied 4/1/02.

Holding below: Comstock Oil & Gas v. Alabama and Coushatta Indian Tribes Fifth Cir., 261 F. 3d. 567. Neither Indian tribe nor tribal council members are entitled to sovereign immunity in declaratory judgment action brought in federal court by oil companies seeking to enforce oil and gas leases on tribe's reservation.

Bay Mills Indian Community v. Michigan, Docket No. 01-1036

Subjects: Taxation - State; Trade and Intercourse Act - Lands (25 USC 177); Due Process; Equality Before the Law - United States; Lands - Trust Relation

*Issues: (1) In 1881, did Trade and Intercourse Act prevent Michigan from selling Indian tribal land acquired by tribe in fee in 1857 for nonpayment of property taxes? (2) Assuming that tribe had cause of action against Michigan for taking of its tribal lands in tax sale, for denial of due process and equal protection, must that action be brought only under 42 U.S.C. 1983, or does Constitution support action for violation of its due process and equal protection clauses? (3) Does ruling in Cass County Minnesota v. Leech Lake Band of Chippewa Indians, 524 US 103, 66 U.S.L.W. 4453 (1998), bar plaintiff's action when plaintiff's tribal land was taken by Michigan for nonpayment of real property taxes in spite of fact that Congress never removed its trust status?

History: Petition for certiorari was filed on 1/14/02. Petition for certiorari was denied 3/18/02.
Current US Supreme Court docket information.

Holding below: Bay Mills Community v. State of Michigan, (PDF), Mich. App., 626 N.W. 2d.169, Land that, despite having been reserved for Indian tribe, was conveyed in fee by United States to non-Indian before Congress ratified treaty and before such land could be withdrawn, was intended to be alienable and, therefore, taxable, and thus county's sale of such land for nonpayment of taxes, even after its return to trust status for use and benefit of two bands of Indians, was not wrongful; Indian Trade and Intercourse Act, 25 U.S.C. 177, which provides that no conveyance of tribal land is valid unless made by treaty, applies only to voluntary conveyance by tribe, not to involuntary conveyance by state for nonpayment of taxes once United States has removed restraint on alienation of land by patenting it in fee simple; due process and equal protection claims for damages against state and governor in his official capacity, which were essentially 42 U.S.C. 1983 causes of action, were properly dismissed because Section 1983 action for damages for alleged federal constitutional violations may not be brought in state courts against state or state official sued in official capacity.

Jefferson v. Minnesota Commissioner of Internal Revenue, Docket No. 01-1037

Subjects: Gaming - Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Taxation - State; Civil Rights - Equal Protection; Tribal Sovereignty and Powers

*Issues: (1) Does Minnesota have right to tax IGRA-derived per capita distributions made solely to tribal members if these distributions come exclusively from tribally owned and reservation-located businesses? (2) Does IGRA preempt any attempt by Minnesota to tax gambling proceeds distributed per capita to individual tribal members? (3) Does position that enrolled Indians who reside on their tribal reservation cannot be taxed by Minnesota while Indians who reside off their own reservation may be taxed on their identically derived income violate equal protection clause of US Constitution and implied equal protection provisions of Minnesota Constitution? (4) Given fact that petitioners were driven off their father's land assignment and could not return to another residence within boundaries of their tribal reservation, should Minnesota Tax Court have determined that petitioners had not freely chosen to reside in Minnesota but were forced to reside in Minnesota rather than on their tribal reservation land? (5) Does state taxation of per capita distributions from gaming interfere with tribal self-government and violate US Supreme Court jurisprudence?

History: Petition for certiorari filed on 10/30/01. Certiorari denied 3/18/02. Current US Supreme Court docket information

Holding below: Jefferson v. Commissioner of Revenue, Minn., 631 NW 2d 391. Minnesota's taxation of per capita payments derived from reservation gaming operations by enrolled members of Indian tribe who reside off their tribe's reservation but within Minnesota is not preempted by Indian Gaming Regulatory Act; neither US Constitution's equal protection clause nor parallel provision of Minnesota Constitution is violated when state imposes income tax on tribal members who reside off reservation but not on tribal members residing on reservation; nor does such tax scheme infringe on tribal self-government.

Bugenig v. Hoopa Valley Tribe
, Docket 01-900

Subject: Tribal Sovereignty and Powers - Environmental Regulation - Nonmember Indians

* Issues: (1) When delegating regulatory jurisdiction over nonmember-owned fee simple property to Indian tribe, must Congress describe that delegation in express and unambiguous language that refers to nonmember-owned fee simple property? (2) Does Congress have authority to delegate regulatory jurisdiction over fee simple property belonging to nonmember to Hoopa Valley Tribe?

Petition for certiorari filed 12/10/01. Review denied 3/18/02. Current US Supreme Court docket information

Holding Below: Roberta Bugenig v. Hoopa Valley Tribe, (PDF) 9th Cir., 266 F.3d 1201. Congress, acting within its authority under Indian commerce clause, expressly and unambiguously delegated to Hoopa Valley Tribe authority to regulate logging by nonmember of tribe on fee land that she owns within borders of tribe's reservation when it enacted 1988 Hoopa-Yurok Settlement Act, which "ratified and confirmed" Hoopa Valley Tribe's governing documents, including provision of tribal constitution extending tribal jurisdiction "to all lands" within reservation.

Idaho State Tax Commission v. Goodman Oil Company
, Docket 01-794

Subject: Taxation - Fuel; Taxation - State

Issue: Does Section 10 of Hayden-Cartwright Act, 4 U.S.C. 104, provide congressional authorization for states to impose their motor fuel taxes on Indian tribes or their members within Indian reservation?

History: Petition for certiorari filed 10/22/01. Review denied 2/19/02.

Holding Below: Goodman Oil Company of Lewiston v. Idaho State Commission, (PDF), Idaho, 28 P. 2d 996. The Supreme Court of Idaho held that (1) Hayden-Cartwright Act did not provide congressional authorization for state to impose fuel tax on sale of fuel to Indians on Indian reservations within state, and (2) Idaho fuel tax and transfer fee statutes imposed legal incident of tax on retailer rather than on distributor.

Miami Nation of Indians of Indiana Inc. v. Norton
, Docket 01-776

Subject: Tribes - Federal Recognition of

*Issues: (1) Does DOI have authority to review status of Indian tribe formally recognized and never terminated by Congress, in absence of abandonment of tribal relations? (2) Is any deference due to DOI's interpretation of its acknowledgment regulations, 25 C.F.R. Part 83 (1982), as incorporating tribal abandonment standard for tribes formally recognized and never terminated by Congress?

History: Petition for certiorari filed 11/30/01. Review denied 2/19/02.

Holding Below: Miami Nation of Indians of Indiana, Inc. v. US Department of the Interior, 7th Cir., 255 F.3d 342. District court decision upholding Department of Interior's ruling that Miami Nation of Indians lacked geographic and political identity required to qualify for recognition as tribe entitled to federal benefits is affirmed, because by time DOI made its determination, Miami Nation had ceased to be tribe in any reasonable sense, given its lack of structure, territory, and significant governance; DOI, if it erred at all, committed only harmless error in assessing tribal status under principles set out in recognition regulation, rather than in applying principles of voluntary abandonment of tribal status, in view of fact that recognition regulation covers abandonment as well as recognition.

Penobscot Nation v. Georgia-Pacific, Docket 01-723

Subject: Freedom of Information Act (FOIA) - Maine

*Issues: Did this court's equitable rule of vacatur require First Circuit to vacate district court rulings when circuit had concluded, under principles of res judicata, that Maine Supreme Judicial Court had, by winning race to judgment, rendered petitioners' federal case superfluous and thereby made it unnecessary for circuit to address decisions petitioners sought to have reviewed on appeal?

History: Petition for certiorari was filed 11/23/01. Review denied 2/19/02.

Holding Below: Penobscot Nation v. Georgia-Pacific Corp., 1st Cir., 254 F.3d 317. Ruling by Maine Supreme Judicial Court that, in dispute between state and Indian tribes concerning regulation of waste water discharge under Clean Water Act, tribes must produce, under Maine Access Act, correspondence between tribes and federal agencies concerning waste water issue, but not documents reflecting internal deliberations about such issue, precludes, on res judicata grounds, relief sought by tribes in federal court suit, making such action superfluous, and, accordingly, federal district court judgment dismissing federal case for lack of jurisdiction is affirmed.


Michael L. Enas v. United States, Docket No. 01-6553

Subjects: Double Jeopardy; Tribal Courts - Authority; Tribal Courts - Jurisdiction; Federal Courts Jurisdiction

History: Petition for certiorari filed 9/25/01. Review denied 1/22/02.

Holding Below: United States v. Enas, (in PDF format) 9th Cir., 255 F. 3d 662. The Court of Appeals held: (1) when an Indian tribe exercises inherent power, the dual sovereignty exception to double jeopardy permits federal and tribal prosecutions for the same crime; (2) under the 1990 amendments to the Indian Civil Rights Act (ICRA), Indian tribe had inherent power to prosecute a nonmember Indian for crime committed on tribe's reservation, so that a federal prosecution for the same crime did not violate the Double Jeopardy Clause; and (3) despite decision of the Supreme Court in Duro that Indian tribes did not have inherent power to prosecute nonmember Indians, Congress had the power to determine that tribes did have such inherent power; overruling Means v. Northern Cheyenne Tribal Court.

Hansard v. Redding Rancheria, Docket No. 01-707

Subject: Sovereign Immunity - Tribal

Does Indian tribe enjoy sovereign immunity for tort committed by tribe while tribe is outside of Indian country?

History: Petition for certiorari filed 9/10/01. Review denied 1/22/02.

Holding Below: Redding Rancheria v. Shasta County Superior Court, (PDF)Cal Ct. App. 88 Cal. App. 4th. 384 Indian tribe and its casino, located within reservation, are immune from ordinary tort suit, arising outside of reservation, based on conduct of casino employees.

Wyandotte Nation v. Sac and Fox Nation of Missouri,
Docket No. 01-445

Subject: Gaming - Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.)

: (1) Should federal court of appeals make determination of what lands constitute "reservation" for purposes of IGRA? (2) Does Tenth Circuit determination that tract of land in Kansas City, Kansas, is not reservation of Wyandotte Nation conflict with 150 years of established law, and is it inconsistent with prior decisions of this court?

History: Petition for certiorari filed 9/12/01. Review Denied 1/07/02.

Holding Below: Sac and Fox Nation of Missouri v. Norton, 10th Cir., 240 F.3d 1250. Secretary of interior lacks authority to interpret term the term "reservation" in Indian Gaming Regulatory Act.

New York Association of Convenience Stores v. Roth
, Docket No. 01-560

Subjects: Taxation - Cigarettes; Taxation - Sales

*Issue: Must laws or policies that single out Native Americans for special treatment be rationally related to "Congress' unique obligation toward the Indians" to satisfy requirements of 14th Amendment's equal protection clause?

History: Petition for certiorari filed 10/01/01, Review denied 12/03/01

Holding Below: New York Association of Convenience Stores v. Urbach, N.Y. App. Div., 712 N.Y.S.2d 220, 275 A.D.2d 520. Judgment dismissing convenience store association's application to compel state tax department to enforce sales and excise taxes pertaining to on-reservation sales of tobacco products and motor fuel by Indian retailers to non-Indian customers is affirmed, court having concluded that record indicates rational basis for state's differential treatment of tribes through indefinite forbearance in enforcing such tax collection, in view of facts that applicable tax statutes cannot effectively be enforced without cooperation of Indian tribes, state auditors cannot go on reservations to examine retailers' records, tribal immunity precludes suits against retailers for failing to collect taxes, and prior efforts to enforce statutes by intercepting tobacco and motor fuel shipments and seizing them not only produced civil unrest and personal injuries, but also were found to violate state tax law.

Muckleshoot Indian Tribe v. Puyallup Indian Tribe, Docket No. 01-14

Subjects: Hunting, Fishing, Trapping and Gathering Rights - Treaties; Subsistence Rights - Treaties

*Issue: Did Ninth Circuit violate principles of res judicata when it radically narrowed geographic area of Muckleshoot Indian Tribe's treaty-based right to fish, as that right was determined in 1974 final judgment, which was affirmed on appeal and on which tribe has relied for 27 years?

History: Petition for certiorari filed 7/3/01. Review denied 10/09/01.

Holding Below: United States v. Muckleshoot Indian Tribe, 9th Cir., 235 F.3d 429. Court of Appeals affirmed the District Court's decision in favor of the Puyallup, Suquamish, and Swinomish Tribes, holding that the Muckleshoot Tribe's saltwater usual and accustomed fishing area, as determined by the 1974 decision in United States v. Washington, did not include any areas outside Elliott Bay.

Penobscot Nation v. Greater Northern Paper Inc.
, Docket No. 01-381

Subject: Freedom of Information Act (FOIA) - Maine

*Issues: (1) Are terms and conditions under which non-Indian public, including corporations that have long been hostile to petitioner tribes, can gain and enforce entry into tribes' reservations to demand, inspect, and copy tribal records "internal tribal matters" reserved, under federal law, to tribes' exclusive control and immune from state jurisdiction? (2) Did Maine Supreme Judicial Court err in deciding, in conflict with decisions of First Circuit, not to measure petitioner tribes' right to be free from state control over non-Indian public's intrusion into reservations to demand, inspect, and copy tribal records in accordance with federal common law principles of inherent tribal sovereignty?

History: Petition for certiorari denied 11/13/01.

Holding Below: Penobscot Nation v. Great Northern Paper Inc. Me., 770 A.2.d 574. The Supreme Judicial Court of Maine ruled that the Maine Freedom of Access Act, (1 M.R.S.A. Sec. 401-410), which is ordinarily applicable to municipalities and other components of state government, is not applicable to the Tribes when they act in their municipal capacities with respect to intertribal matters or when they interact with other governments or agencies in their municipal capacities.



* "Issues" reproduced with permission from The United States Law Week on the Internet and print at:

Vol. 69, No. 16, p. 3305 (October 31, 2000).

Vol. 69, No. 29, p. 3524 (February 6, 2001).

Vol. 69, No. 29, p. 3524 (February 6, 2001).

Vol. 70, No. 6, p. 3117 (August 14, 2001).

Vol. 70, No. 11 p. 3199 (September 25, 2001)

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