Two"Indian law-related" cases have been decided by the Supreme Court in the 2003-2004 term.
United States v. Lara
2004 WL 826057
Docket No. 03-107
Does Section 1301, as amended, validly restore tribes' sovereign
power to prosecute members of other tribes (rather than delegating
federal prosecutorial power to tribes), such that federal prosecution
following tribal prosecution for offense with same elements is
valid under Fifth Amendment's double jeopardy clause?
History: Petition for certiorari was filed on 7/22/2003. Petition granted on 9/30/03. Argued 1/21/04. Decided 4/19/04.
v. Lara, 324
F.3d 635, 8th cir. Distinction between powers that Indian
tribe derives from its retained sovereignty and powers delegated
to tribe by Congress is of constitutional magnitude and thus is
matter ultimately entrusted to Supreme Court, and not Congress;
accordingly, 1990 amendments to Indian Civil Rights Act, 25
U.S.C. § 1301, are ineffective insofar as they attempted
to overturn Duro v. Reina, 495
U.S. 676 (1990), which held that tribe's retained or inherent
sovereignty does not provide it with criminal jurisdiction over
nonmember Indians; tribal authority to prosecute Indian who is not
member of tribe derives from power delegated by Congress rather
than from tribe's retained sovereignty, and thus federal prosecution
of Indian for offenses for which he had previously been prosecuted
by tribe of which he was not member is barred by double jeopardy
clause, because authority for both prosecutions is derived from
same sovereign source.
Subjects: Environmental regulation; Water rights -- Water quality.
*Issues: (1) Does pumping of water by state water management agency that adds nothing to water being pumped constitute "addition" of pollutant "from" point source triggering need for NPDES permit under Clean Water Act? (2) Should court below have deferred to consistent and long-held federal and state agency position that petitioner's pumping does not constitute "addition" that requires NPDES permit?
History: Petition for certiorari was filed on 10/21/02. Petition granted on 7/27/03. Argued 1/14/04. Decided 3/23/04.
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.
of Sherrill, New York v. Oneida Nation of New York
(1) Is alleged reservation land Indian country pursuant
U.S.C. § 1151 and this court's decision in Alaska
v. Native Village of Venetie Tribal Gov't, 522
U.S. 520, 66 U.S.L.W. 4145 (1998), when land was neither
set aside by federal government nor superintended by federal
government? (2) Was alleged reservation land set aside
by federal government for purposes of Indian country analysis
U.S.C. § 1151 and Venetie when alleged reservation
was established by state of New York in 1788 Treaty of
Fort Schuyler, and not by any federal treaty, action,
or enactment? (3) Did 1838 Treaty of Buffalo Creek, which
required New York Oneidas to permanently abandon their
lands in New York, result in disestablishment of Oneida's
alleged New York reservation? (4) May alleged reservation
(i) remain Indian country or (ii) be subject to protections
of Non-Intercourse Act, 25
U.S.C. § 177, if tribe claiming reservation status
and Non-Intercourse Act protection ceases to exist?
History: Petition for certiorari was filed on 12/11/2003. Petition granted 6/28/04.
Indian Nation of New York v. City of Sherrill,
Second Cir. 337
District court's determination that properties reacquired
by Oneida Indian Nation of New York are in Indian country
and therefore are not subject to taxation by New York state
and its municipalities, absent explicit congressional authorization,
is affirmed, notwithstanding city's contention that although
properties were part of Oneidas' aboriginal land and tribe's
reservation as recognized by Treaty of Canandaigua, they
are subject to taxation because they are no longer within
Indian country and Oneidas no longer exist as tribe; properties
in city of Sherrill, N.Y., including gasoline station, convenience
store, and textile manufacturing and distribution facility,
are located on Oneidas' historical reservation land set
aside for tribe under Treaty Canandaigua and therefore satisfy
conditions of 18
U.S.C. § 1151, which defines Indian country to
include "all dependent Indian communities within the
borders of the United States whether within the original
or subsequently acquired territory thereof, and whether
within or without the limits of a state"; Buffalo Creek
Treaty includes no text that provides "substantial
and compelling" evidence of Congress's intention to
diminish or disestablish Oneidas' New York reservation,
and therefore cannot be read to effect formal disestablishment
of such reservation; city's contention that disputed issues
of fact exist as to whether Oneidas have maintained tribal
existence so as to be entitled to claim properties as reservation
land is unavailing, appeals court having found no requirement
in law that federally recognized tribe must demonstrate
its continuous existence in order to assert claim to its
Nation of Oklahoma v. Thompson
*Holding below: Cherokee Nation v. Thompson, 10th Cir., 11/26/02, 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.
News Stories: Supreme Court to Resolve Self-determination
v. Cherokee Nation of Oklahoma
1) Does ISDEAA require secretary of health and human services
to pay contract support costs associated with carrying out
self-determination contracts with Indian Health Service,
when appropriations were otherwise insufficient to fully
fund those costs and would require reprogramming funds needed
for noncontractable, inherently federal functions such as
having Indian Health Service? (2) Does Section 314 of 1999
Omnibus Consolidated and Emergency Supplemental Appropriations
Act bar respondent from recovering its contract support
History: Petition for certiorari was filed on 12/11/2003. Petition granted 3/22/04.
v. Cherokee Nation of Oklahoma, Federal Cir.,
WL 21511710. Availability clause of Indian Self-Determination
and Education Assistance Act, 25 U.S.C. § 450j-1(b),
which provides that "[n]otwithstanding any other provision
in this subchapter, the provision of funds under this subchapter
is subject to the availability of appropriations," does
not excuse failure by secretary of health and human services
to pay full contract support costs incurred by Indian tribe
in administering federal programs under contract with secretary,
when there were no statutory caps on funding in appropriations
acts for relevant fiscal years, and when secretary has not
shown that full payment of contract support costs would breach
statutory ban against reduction in "funding for programs,
projects, or activities serving [another] tribe" in order
to make such payments; in meeting contractual obligations,
secretary lacks discretion, in absence of statutory cap, to
refuse to reprogram funds within lump-sum appropriation for
purposes other than those contemplated at time of appropriation;
funds are "available" within meaning of Section
450j-1(b) when secretary has authority to reprogram and funds
are available within lump-sum appropriation; Section 314 of
1999 Omnibus Consolidated and Emergency Supplemental Appropriations
Act, which provides that "[n]otwithstanding any other
provision of law, amounts appropriated to or earmarked in
committee reports ... for payments to tribes ... for contract
support costs ... are the total amounts for fiscal years 1994
through 1998 for such purposes," does not defeat tribal
right to contract support costs for 1994, 1995, and 1996 fiscal
years that vested long before passage of 1999 appropriations
act; ISDEAA makes it clear that funds devoted by secretary
to "inherently federal functions" are not unavailable
for contract support costs, and thus secretary was obligated
to reprogram such funds in order to pay contract support costs.
for certiorari is pending in three Indian law cases this term.
History: Petition for certiorari was filed on 6/25/2004.
*Holding below: Michael Minnis & Associates, P.C. v. Kaw Nation, 90 P.3d 1009, Law firm's contract with Indian tribe included express stipulation to jurisdiction of tribal courts, uncontroverted evidence established tribal chairman's express authorization by tribal general council to defend tribe against law firm's contract action, as well as invalidity of attempts, by putative majority of tribal executive council, to waive tribal sovereign immunity, to consent to state court jurisdiction, to confess judgment on law firm's contract claim, and to dismantle tribal judicial system, and thus law firm's state court contract action is barred by tribal sovereign immunity.
Joe's v. Norton
History: Petition for certiorari was filed on 5/27/2004.
*Holding below: Artichoke Joe's California Grand Casino V. Norton, 353 F.3d 712, Neither California constitutional amendment that permits operation of casino-type gambling facilities exclusively by Indian tribes and only on Indian lands, nor state-tribal compacts implementing such right, violate Indian Gaming Regulatory Act or infringe Fifth or 14th Amendment equal protection rights of non-Indians, who are prohibited by California law from operating similar facilities.
v. Cow Creek Band of Umpqua Tribe of Indians
History: Petition for certiorari was filed on 5/11/2004.
Holding below: Steffler V. Cow Creek Band of Umpqua Tribe of Indian, 2004 WL 830080,(from the court opinion) A person must be detained in some way by tribal authority to invoke subject matter jurisdiction under 25 U.S.C. § 1303. Moore v. Nelson, 270 F.3d 789, 790 (9th Cir.2001). Because Steffler was detained only by Oregon state authorities, and because the record does not reveal that the tribe acted in any way to cause the detention, we conclude that the district court did not err in dismissing Steffler's petition for lack of jurisdiction.
Petition for certiorari was filed on 4/26/2004. Petition
was denied on 6/28/04.
v. United States
Seminole Nation of Oklahoma; United States; Certificate
of degree of Indian blood; Tribes -- Membership; Heredity; Africa;
United States. Bureau of Indian Affairs.
History: Petition for certiorari was filed on 3/15/2004. Petition was denied on 6/28/04.
ex rel. Davis v. U.S. 343
District court's dismissal of suit by two bands
of Native American tribe--Seminole Nation of Oklahoma--alleging
that because of their African ancestry they have been systematically
denied benefits routinely given to other members of tribe and
that government improperly refused to issue Certificates of
Degree of Indian Blood to members of plaintiff bands, is affirmed,
district court having properly determined that (i) plaintiffs
failed to join indispensable party--tribe itself--with respect
to claim that plaintiffs were wrongfully excluded from participation
in some of tribal assistance programs, and (ii) court lacked
jurisdiction to hear CDIB claim because plaintiffs failed to
show that they had exhausted administrative remedies.
Tribe of Nebraska v. Superior Court of California, Riverside
Subjects: Intertribal Strategic Ventures; Ponca Tribe of Indians of Oklahoma; Sovereign immunity -- Ponca Tribe of Indians of Oklahoma; Business -- Off Indian reservations -- Ponca Tribe of Indians of Oklahoma; Disclosure in accounting.
*Issues: (1) Can state regulatory agency enforce administrative subpoena directed to financial institution seeking financial records of Indian tribe and tribal entity formed pursuant to authority of that tribe? (2) Does tribal sovereign immunity doctrine arising from Indian commerce clause, treaty clause, and supremacy clause permit state, through subpoena, to compel Native American tribe and tribal entity to allow disclosure of financial records maintained by bank or other depository institution? (3) Is tribal sovereign immunity doctrine arising from Indian commerce clause, treaty clause, and supremacy clause waived or otherwise not recognized when tribe or tribal entity does business off-reservation or with non-Indians? (4) Is tribal sovereign immunity doctrine arising from Indian commerce clause, treaty clause, and supremacy clause waived or otherwise not recognized when tribal financial records are maintained by bank or other depository institution?
History: Petition for certiorari was filed on 3/30/2004. Petition was denied 6/1/04.
Holding below: (opinion not found as of 4/6/04) Court denies petition for writ of mandate/prohibition seeking (i) order directing lower court to strike its denial of motion, made by entity formed pursuant to authority of participating Native American tribes, to quash administrative subpoena directed to bank seeking entity's financial records, and (ii) new order granting such motion.
South Dakota Dept. Revenue v. Pourrier
History: Petition for certiorari was filed on 4/05/2004. Petition was denied on 5/24/04.
First ruling below: Pourier
v. South Dakota Dept. of Revenue,
(1) Do BIA officer and county sheriff enjoy absolute immunity
when enforcing ex parte tribal court order banishing non-Indian
from her home on fee land, all other fee lands, and public
highways within reservation? (2) Are BIA officer and county
sheriff entitled to absolute immunity when enforcing tribal
court banishment order against non-Indian when officers threaten
arrest, since BIA officer had no authority to arrest non-Indian,
county sheriff had no authority to enforce tribal court order,
and federal statutory authority for enforcement of tribal
court orders provides that such enforcement by BIA officer
is "subject to federal law" and enforcement violates
History: Petition for certiorari was filed on 12/05/2003. Petition denied 4/19/04.
v. United States, Eigth Cir., 2003
WL 21543782,Tribal judge who issued temporary
restraining order excluding non-Indian from tribe's reservation
for 30 days without hearing and relying solely on uncorroborated,
unsworn petition is absolutely immune, to same extent as state
and federal court judges, from suit seeking damages for his
actions; Bureau of Indian Affairs officer and local county sheriff
are protected by absolute quasi-judicial immunity from suit
seeking damages for their enforcement of order, which was facially
(1) Is AB, citizen of United States and North Dakota,
and Indian child as that phrase is defined under ICWA, entitled
to protections of U.S. and North Dakota Constitutions and
thus entitled to due process and equal protection afforded
other children under relevant federal and state laws concerning
protection of children, and is review of application of ICWA
to individual Indian child subject to strict scrutiny under
both equal protection and substantive due process analyses,
so that means employed must be narrowly tailored to meet compelling
governmental interest especially when matter involved government
action vis a vis individual child rather than government action
vis a vis tribe? (2) Should existing Indian family doctrine
be applied here to prevent unconstitutional application of
ICWA to facts of this case? (3) Under fair application of
ICWA to facts of this case should tribe's motion to transfer
jurisdiction have been denied because (a) mother's prior veto
of tribe's initial motion to transfer jurisdiction barred
subsequent motion to transfer jurisdiction, (b) motion was
untimely, (c) tribal court is inconvenient forum, and/or (d)
best interests of child should have been considered by state
courts? (4) Did Congress exceed its authority under Indian
commerce clause and violate 10th Amendment in enacting ICWA?
History: Petition for certiorari was filed on 11/17/2003. Petition denied 4/5/04.
Re A. B.
Supreme Court of ND, 2003
ND 98. Different treatment of Indians and
non-Indians under Indian Child Welfare Act, which gives tribal
courts concurrent but presumptive jurisdiction of child custody
proceeding involving Indian child not domiciled or residing
within reservation of child's tribe, 25
U.S.C. § 1911(b), is rationally related to protection
of integrity of Native American families and tribes and to fulfillment
of Congress's unique guardianship obligation toward Indians,
and thus transfer of state parental termination proceeding to
tribal court on tribe's motion did not deny right to equal protection
or substantive due process of Indian child who lived off reservation
in non-Indian foster home; Indian family exception to ICWA,
under which some courts have refused to apply ICWA when Indian
child is not being removed from existing Indian family with
significant connection to Indian community, is contrary to plain
language of ICWA, would thwart statute's protection of tribe's
interest in its Indian children, and was effectively undermined
in Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989);
tribe's motion to transfer jurisdiction filed seven weeks after
filing of parental termination proceeding was timely; tribal
court offered to sit in Fargo where child resided, and thus
was not inconvenient forum; best interest of child is not consideration
for threshold determination of whether there is good cause not
to transfer jurisdiction to tribal court under ICWA; transfer
for Safer Communities v. Norton
History: Petition for certiorari was filed on 2/11/2004. Petition denied 4/5/04.
Holding below: City of Roseville V. Norton 348 F.3d 1020, Secretary of interior's approval of Auburn Indian Tribe's application for creation of 49.21-acre reservation for use as casino on land identified for possible reservation use in Auburn Indian Restoration Act, which restored Auburn Indian Band to federal recognition as tribe and authorized creation of new reservation on its behalf, qualified as "restoration of lands for an Indian tribe that is restored to federal recognition" under Indian Gaming Regulatory Act, even though new reservation was 40 miles from tribe's former reservation and would be put to different use than former reservation, and thus secretary's action was exempt from IGRA's requirement that secretary of interior, prior to deciding that certain Indian land may be used for gaming, must find that gaming would not be detrimental to surrounding communities and must secure consent of state's governor.
v. United States
(1) Is federally recognized Indian tribe necessary and indispensable
party to action by individual Indians to enforce their allotments
of non-tribal land pursuant to 25
U.S.C. § 345? (2) Can individual Indians be deprived
of all rights and remedies provided by 25
U.S.C. § 345, when subsequently recognized Indian
tribe falsely claims sovereignty over non-tribal land allotted
to individual Indians?
History: Petition for certiorari was filed on 12/18/2003. Petition denied 3/22/04.
v. United States, 9th cir., 73
Fed. Appx. 913. Indian tribe that has claimed jurisdiction
over parcel of land at issue in this action since at least 1981,
and whose interest therein would be impaired if certain litigants
were declared to be beneficial owners of that land, is necessary
and indispensable party that enjoys sovereign immunity from
suit, whose interests cannot adequately be represented by United
States in this intertribal dispute, and whose absence requires
dismissal of action.
(1) When no finding was made that custody with Indian mother
would likely cause serious physical or emotional damage to
child and, to contrary, state court granted Indian mother
liberal and unsupervised parenting time, did state court exceed
its jurisdiction and violate ICWA by (a) failing to immediately
restore full physical and legal custody of Indian child to
Indian mother when, prior to and during trial, Indian mother
expressed her desire to terminate voluntarily created limited
guardianship and regain full physical and legal custody of
Indian child, as was Indian mother's statutory right, 25
U.S.C. § 1913(b); (b) acting without jurisdiction
in violation of 25
U.S.C. § 1920 by conducting custody proceeding in
which limited guardians retained custody of Indian child after
Indian mother had expressed desire to regain her custodial
rights; (c) failing to require limited guardians to notify
Indian child's tribe of this foster care placement proceeding
and of tribe's right to intervene under 25
U.S.C. § 1912(a), which omission created jurisdictional
defect in all further proceedings; and (d) failing to require
limited guardians to introduce qualified expert testimony
to establish that active efforts had been made to avoid breakup
of Indian family as required by Section 1912(d)? (2) Did state
courts err in failing to accord natural mother's constitutional
right to make reasonable decisions as to care and custody
of her child appropriate weight and importance, as required
v. Granville, 530 U.S. 57, 68 U.S.L.W. 4458 (2000)?
History: Petition for certiorari was filed on 12/29/2003. Petition denied on 3/08/04.
Holding below: Davis v. Beveridge, Mich. App, Ct., 2003 WL 198011. Provision of Indian Child Welfare Act, 25 U.S.C. §1912(a), that requires notification of tribe when foster care placement of, or termination of parental rights to, Indian child is sought is inapplicable to action in which child's paternal grandparents, who already had temporary custody of child pursuant to child's parents' divorce decree, sought to modify decree in order to acquire full custody of child, and thus mother's contention that noncompliance with ICWA's notification provisions deprived court of jurisdiction to award custody of child to grandparents is meritless; trial court did not violate mother's constitutional rights by deciding it would be in child's best interest to award full custody to paternal grandparents, especially in light of evidence that mother had alcohol and drug abuse problem, including recent hospitalization for heroin overdose.
United States v. Santee Sioux Tribe of Nebraska
Is Lucky Tab II machine excluded from Johnson Act's definition
of "gambling device" in 15
U.S.C. § 1171(a)(2)(B) because player becomes entitled
to receive money as result of sequence of winning and losing
pull-tabs on pre-printed paper roll inserted into machine?
History: Petition for certiorari was filed on 11/21/2003. Petition denied 3/1/04.
v. Santee Sioux Tribe of Nebraska, 324
F. 3d. 607, Eighth cir. Lucky Tab II machine, which
dispenses, in identical order from roll as physically placed
in machine, pull-tabs from that roll, does not generate random
patterns with element of chance but is merely high-tech dispenser
of pull-tabs that also displays contents of tickets on screen
for user, and thus is not gambling device, "designed and
manufactured primarily for use in connection with gambling,
and ... by the operation of which a person may become entitled
to receive, as the result of the application of an element of
chance, any money or property," that is prohibited within
Indian country by Johnson Act, 15
U.S.C. § 1171(a)(2)(B).
Docket No. 03-740
(1) Does IGRA create implied exemption from Johnson Act
for certain gambling devices used at tribal gaming facilities
in Indian country in absence of tribal-state gaming compact?
(2) Can machine qualify as gambling device under Johnson Act
when player becomes entitled to receive money as result of
sequence of winning and losing pull-tabs on pre-printed paper
roll inserted into machine?
History: Petition for certiorari was filed on 11/21/2003. Petition denied 3/1/04.
Cayuga Tribe of Oklahoma v. National Indian Gaming Commission,
U.S. Court of Appeals, Tenth cir., 327
F.3d 1019. Provision
of Indian Gaming Regulatory Act classifying "the game of
chance commonly known as bingo (whether or not electronic, computer
or other technologic aids are used in connection therewith)
... including (if played in the same location) pull-tabs ...
and other games similar to bingo" as Class II gaming permitted
in Indian country shields Indian country users of IGRA Class
II technologic aids from liability under earlier-enacted Johnson
Act, which prohibits possession or use of "any gambling
device" within Indian country, 15 U.S.C. § 1175(a);
provision of IGRA stating that Johnson Act "shall not apply
to any gaming conducted under a Tribal-State compact" entered
into between "any Indian Tribe having jurisdiction over
the Indian country upon which a Class III gaming activity is
being conducted" and "a state in which gambling devices
are illegal," 25
U.S.C. § 2710(d)(3), (6), may not be read, under canon
of expressio unius est exclusio alterius, to preclude use of
otherwise legal Class II devices in absence of tribal-state
compact, particularly in view of legislative history evincing
congressional intent that Johnson Act not preclude use of devices
in aid of games similar to bingo that are allowed under IGRA;
National Indian Gaming Commission regulation stating that "pull
tab dispensers and/or readers" are included as IGRA Class
II "electronic, computer, or other technologic aids,"
25 C.F.R. § 502.7(a), is reasonable and entitled to
deference; machine that dispenses paper pull-tabs from roll
that is part of larger deal containing predetermined number
of randomly distributed winning tabs, and that requires player
to manually peel back top layer of pull-tab to confirm victory
and to present tab for visual inspection to gaming hall clerk
to become entitled to winnings, is technologic aid used in connection
with playing of pull-tabs and thus Class II IGRA gaming device
exempt from Johnson Act.
Valley Band of Pomo Indians v. California
(1) Did Ninth Circuit err in holding, in acknowledged conflict
with Second Circuit, that state that has legalized some forms
of Class III gaming has no obligation to negotiate compacts
with Indian tribes regarding other forms of such gaming? (2)
To what extent, if any, may state require Indian tribe to
sacrifice core elements of its sovereignty and to subject
itself to state taxation and to state labor laws as prerequisite
to state's agreement to enter into gaming compact under IGRA?
History: Petition for certiorari was filed on 12/01/2003. Petition denied 2/23/2004.
Holding below: Coyote Valley Band v. State of California, Ninth Cir., 331 F.3d 1094. State's obligation under Indian Gaming Regulatory Act to negotiate in good faith with Indian tribe with respect to Class III gaming if "such gaming" is permitted in state does not require state that has legalized some forms of Class III gaming to negotiate with tribe about other forms of Class III gaming that are prohibited in state; provisions of model gaming compact between California and Indian tribes that establish (i) revenue sharing trust through which gaming tribes must share gaming revenues with non-gaming tribes, (ii) special distribution fund through which gaming tribes must contribute gaming revenues to fund state gaming regulatory activities, and (iii) collective bargaining and other labor protections for workers at tribal gaming establishments do not impose upon tribe "tax, fee, charge, or other assessment" prohibited by Section 2710(d)(4) of IGRA but, instead, fall within scope of Section 2710(d)(3)(C)(vii), which authorizes compact provisions covering "subjects that are directly related to the operation of gaming activities"; accordingly, state did not act in bad faith by refusing to enter compact with tribe that did not include these provisions.
Related news stories: Supreme Court Won't Take on Calif. Compact Dispute (Indianz.com) 02/24
Turley v. Eddy
(1) When considering Indian tribal officials' sovereign immunity
defense, must courts first determine scope of tribal sovereignty?
(2) When Indian tribal officials assert sovereign immunity
as defense to litigation challenging lawfulness of their actions
asserting reservation jurisdiction over lands that are (a)
outside of legislated boundaries of tribe's reservation and
(b) precluded by statute from having reservation status, must
courts first determine scope of tribal sovereignty? (3) Can
courts apply "Indian lands exception" to Quiet Title
U.S.C. § 2409a, without first determining that litigation
involves "trust or restricted Indian lands"?
History: Petition for certiorari was filed on 11/24/2003. Petition denied 2/23/2004.
Holding below: Turley v. Eddy, U.S. Court of Appeals, Ninth cir., 2003 WL 21675511. District court properly dismissed complaint against individual officers of Indian tribe, alleging wrongful eviction from land in which tribe claims interest, for failure to join necessary and indispensable parties--tribe and United States--that are immune from suit.
Frank and Forest County Potawatomi Community of Wisconsin v.
Forest County, Wisconsin
(1) Does 10 percent rule of Brown v. Thomson apply to all
jurisdictions, regardless of size? (2) Is presumptively unconstitutional
reapportionment plan implicating fundamental right to vote
subject only to "rational basis" level of judicial
scrutiny? (3) Must voting age population, total population,
or some other measure be used in analyzing Voting Rights Act
claim, or is relevant population base political choice for
History: Petition for certiorari was filed on 10/13/2003. Petition was denied on 1/12/2004.
v. Forest County, U.S. Court of Appeals, seventh
F.3d 570. Ten
percent rule of Brown
v. Thomson, 462 U.S. 835 (1983)--which held that population
disparity of greater than 10 percent creates prima facie case
of discrimination in electoral districting plan--is rebuttable,
and more easily so when districts being reviewed are both numerous
and in sparsely populated area whose residents are unevenly
distributed; accordingly, although difference between largest
of sparsely populated county's 21 supervisory districts, which
has 514 residents, and smallest district, with 428 residents,
is 18 percent, county's districting does not deny equal protection
of law, especially in light of modest functions that state has
assigned to board of supervisors of remote, rural county; contention
of county's Indians, who have population majorities in two districts,
that Voting Rights Act requires redistricting to create third
district in which Indians, when combined with transient black
residents of Job Corps center, would have majority is meritless
in absence of evidence that, in supervisory elections, Indian
and black voters would have same electoral preferences.
Federation of Government Employees, AFL-CIO, et. al v. United
Equality before the law -- United States; Contracting
out; Employee selection; United States -- Officials and employees;
American Federation of Government Employees. United States.
Defense Appropriations Act.
*Holding below: American Federation of Government Employees, AFL-CIO, et. al v. United States, District of Columbia Cir., 330 F.3d 513. Section 8014(3) of 2000 Defense Appropriations Act, which relieves Department of Defense of its general obligation to perform most efficient and cost-effective organization analysis--which is predicate to outsourcing work previously done by more than 10 government employees--when it contracts out work to qualified Native American firm, is rationally related to important federal interest in promoting economic development of federally recognized Indian tribes and thus does not violate affected federal employees' equal protection rights.
Drunk driving; Montana; Judgments, Criminal; Tribal
courts -- Blackfeet Tribe of the Blackfeet Indian Reservation
*Holding below: State v. Spotted Eagle, Supreme Court of Montana, 71 P.3d 1239. The Supreme Court, James C. Nelson, J., held that: (1) defendant's uncounselled tribal convictions for DUI were valid at inception, and (2) tribal convictions could be used to enhance state DUI charge to felony.
Related News Stories: Mont. Court Accepts Tribal Court Convictions (Indianz.com) 6/25 http://www.indianz.com/News/show.asp?ID=2003/06/25/mont
v. Saratoga County Chamber of Commerce Inc.
*Issues: May court disregard tribal sovereign immunity in determining if Indian tribe is indispensable party to suit that is likely to significantly prejudice tribe's interests?
History: Petition for certiorari was filed on 8/19/2003.
County Chamber of Commerce v. Pataki Court of Appeals of
WL 21357342 Although sovereign immunity prevents
Indian tribe from being forced to participate in state court
proceedings, it does not require everyone else to forgo resolution
of all disputes that could affect tribe, and thus tribe is not
indispensable party to action challenging, on state constitutional
grounds, governor's authority to negotiate and sign agreement
with tribe to permit casino gaming on its reservation.
del Sur Pueblo v. Texas
(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
California v. Cabazon Band of Mission Indians, 480 U.S. 202
(1987)? (3) If not, can federal courts require Pueblo (a)
to obtain license from Texas prior to conducting bingo in
accordance with substantive provisions of Texas state law,
and (b) to be "qualified organization" prior to
conducting bona fide carnival contests when no such requirement
exists for any other person? (4) Will Supreme Court exercise
its supervisory power to prevent grave miscarriage of justice
wrought by federal courts in derogation of this country's
trust relationship with Pueblo?
History: Petition for certiorari was filed on 9/23/2003. Petition was denied on 11/3/03.
*Holding below: Texas v. Ysleta del Sur Pueblo, District Court, W.D. Texas, 220 F. Supp. 2d 668. District court did not abuse its discretion in refusing to modify its permanent injunction, barring Indian tribe from holding gambling activities on tribal lands, in order to permit tribe to participate in charitable bingo, carnival contests, and promotional player pool activities.
Tribe of Texas v. Texas
(1) Given disapproval by this court in 1998 of hypothetical
jurisdiction, can Fifth Circuit now rely on dicta in 1994
Fifth Circuit decision--to effect that statutes restoring
Ysleta Tribe to federal status, rather than Indian Gaming
Regulatory Act, governed Ysleta Tribe's gaming activity and
that federal courts had no jurisdiction to consider Ysleta
Tribe's claims under those restoration statutes--to deny Alabama-Coushatta
Tribe's requested declaration of its gaming rights? (2) Is
remand appropriate when dicta in Ysleta del Sur Pueblo v.
Texas, now being relied upon to deny Alabama-Coushatta right
to gaming, was wrong?
History: Petition for certiorari was filed on 8/19/2003. Petition was denied on 10/6/03.
below: (Unreported decision from the 5th cir.) Trial court's
ruling in favor of state, enjoining Alabama Coushatta Tribe
of Texas from conducting gaming on its lands in accordance with
Ysleta del Sur Pueblo and Alabama Coushatta Indian Tribes of
Texas Restoration Act, is affirmed on basis of Ysleta del Sur
Pueblo v. Texas, 36
F.3d 1325 (5th Cir. 1994), which construed Restoration
Act provision stating that "[a]ll gaming activities which
are prohibited by the laws of the State of Texas" are prohibited
on tribal lands of Ysleta del Sur Pueblo--which is parallel
to provision regarding Alabama Coushatta lands--to prohibit
Ysleta del Sur Pueblo from engaging in any gaming activity prohibited
by Texas law; contention that such interpretation in Ysleta
del Sur Pueblo was dicta is meritless.
(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. Petition was denied on 10/6/03.
*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.
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. Petition was denied on 10/6/03.
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
*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. Petition was denied on 10/6/03.
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
*Issues: (1) Does state have same trust relationship with Native Americans as does federal government? (2) Does state law that allows tribal members to hunt wildlife within Indian reservation while denying that same right to nontribal members who own property within those boundaries create racial classification that must be subjected to strict scrutiny in accordance with Richmond, Va. v. J.A. Croson Co., 488 U.S. 469 (1989), and Adarand Constructors Inc. v. Peña, 515 U.S. 200 (1995)? (3) Does state law that distinguishes between tribal and nontribal members, when tribal membership is dependent on ancestry, create racial classification that must be subjected to strict scrutiny?
History: Petition for certiorari was filed on 5/9/2003. Petition was denied on 10/6/03.
v. Shook (Briefs),
Mont. 347, Montana Supreme Court. Federal Indian
law is binding on state, and, therefore, state constitutional
equal protection guarantee must allow for state classifications
based on tribal membership if those classifications can rationally
be tied to fulfillment of unique federal, and consequently state,
obligation towards Native Americans; state regulation that prohibits
nontribal members from hunting big game on Indian reservations
fulfills that test by preserving wildlife population for hunting
by Native Americans, as required by treaties, and, therefore,
nontribal member could be prosecuted for illegal hunting on
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. Petition was denied on 10/6/03.
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.
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
History: Petition for certiorari was filed on 4/22/2003. Petition was denied on 10/6/03.
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 weight.