Cases Involving or Affecting Native Americans Before the U.S. Supreme Court

1999-2000 Term

as of June 20, 2000





I. Supreme Court offered two (2) decisions this term for cases involving or affecting Native Americans.

 

Arizona v. California, Docket No. 8 Original

 

*ISSUE: Did the United States reserve water rights on behalf of five Indian reservations?
HISTORY: Decision June 19, 2000. Case history extends back to 1952.
HOLDING: Supreme Court held that: 1) the claims of the Quechan Tribe and of United States on tribe's behalf for increased water rights for disputed boundary lands of Fort Yuma Reservation were not precluded by water rights ruling in Arizona v. California, 373 U.S. 546; 2) nor were such claims precluded by consent judgment entered in prior Court of Claims proceeding in which Tribe had challenged 1893 Agreement providing for Tribe's cession of such disputed lands, and 3) settlements of claim for additional water for Fort Mojave Reservation and Colorado River Indian Reservation would be approved.

 

Rice v. Cayetano, Docket No. 98-818

 

*ISSUE: Did the court of appeals err in holding that the Fourteenth and Fifteenth Amendments permit adoption of explicit racial classification that restricts the right to vote in statewide elections for state officials?
HISTORY:  

Petition for certiorari filed November 17, 1998.

Petition for review granted March 22, 1999.

Interim order September 10, 1999.

Oral Argument heard October 6, 1999.

Decision February 23, 2000.

HOLDING: Supreme Court held that: 1) limiting voters to those persons whose ancestry qualified them as either a "Hawaiian" or "native Hawaiian," as defined by statute, violated the Fifteenth Amendment by using ancestry as proxy for race, and thereby enacting a race-based voting qualification; 2) exclusion of non-Hawaiians from voting for OHA trustees was not permissible under case allowing differential treatment of certain members of Indian tribes; 3) voting qualification was not permissible under cases holding that one-person, one-vote rule did not pertain to certain special purpose districts; and 4) voting qualification was not saved from unconstitutionality on theory that voting restriction merely ensured an alignment of interests between fiduciaries and beneficiaries of a trust

 

II. Petitions for certiorari review was granted in no cases involving or affecting Native Americans.

 

III. Petitions for certiorari review were denied, or received summary disposition, in twenty-eight (30) cases involving or affecting Native Americans.


Court of Indian Offenses of the Choctaw Nation v. Dry, Docket No. 98-1879

 

*ISSUES: 1. For purposes of habeas corpus review, is 'detention," as used in Indian Civil Rights Act synonymous with phrase "in custody," as employed in 28 U.S.C. 2241?

2. If not, are individuals who have been released on their own recognizance by tribal court pending trial for violations of tribal law, and whose movements are in no way restricted, under "detention" within meaning of 25 U.S.C. 1303, absent any special circumstances?

3. If "detention" and "in custody" are synonymous, are such person "in custody" for purposes of habeas corpus review under this court's case law?

HISTORY: Petition for certiorari filed May 21, 1999.

Petition for certiorari denied October 4, 1999.

HOLDING BELOW:  

Dry v. CFR Court of Indian Offenses for the Choctaw Nation, 168 F.3d 1207 (Tenth Circuit,1999)

Under Indian Civil Rights Act (ICRA), 25 U.S.C. 1301 et seq., which makes habeas corpus "available to any person, in a court of the United States, to test the legality of his detention by order of any Indian tribe," "detention" under meaning of federal habeas statute, 28 U.S.C. 2241; petitioners who were charged, arraigned, and released on own recognizance pending trial in tribal court meet "in custody" requirement of 2241 under rationale of Justices of Boston Municipalities Court v. Lydon, 466 U.S. 294 (1984), and therefore, district court erred in dismissing their habeas petition regardless of whether its jurisdiction was based on 1303 or 2241.

Petitioners, members of the Choctaw Nation, had been charged with various violations, arraigned, and released on their own recognizance pending trial by the Court of Indian Offenses for the Choctaw Nation. They sought habeas relief, challenging that court's jurisdiction. The district court dismissed petition and petitioners appealed. The court of appeals reversed and remanded, holding that petitioners were "in custody" as required for federal court to have jurisdiction over their habeas petition. On remand, the district court was directed to consider, in the first instance, whether petitioners have sufficiently exhausted their tribal remedies.

 

 

Johnson v. Gila River Indian Community , Docket No. 99-162


*ISSUES:  

1. Did district court improperly dismiss petitioner's claims against Gila River Indian Community for relief under 28 U.S.C. 1331?

2. Did petitioner's allegation of unlawful exercise of tribal court judicial power require district court to conduct evidentiary hearing to determine under 1331 whether tribal court exceeded lawful limits of its jurisdiction?

HISTORY:  

Petition for certiorari filed July 21, 1999.

Petition for certiorari denied October 4, 1999.

HOLDING BELOW:  

Johnson v. Gila River Indian Community, 174 F.3d 1032 (Ninth Circuit, 1999).

Indian tribes possess common law immunity from suit in federal court, and thus district court properly dismissed individuals Indian Civil Rights Act (ICRA) claims against tribe alleging that tribe had unconstitutionally converted his property by its appellate court's unreasonable delay in ruling on his appeal from judgment against him by tribal court that lacked personal jurisdiction over him.

Owner of rubber processing equipment brought action alleging that Gila River Indian Community took his property without just compensation and violated ICRA. The district court dismissed the action and owner appealed. The court of appeals held that: (1) Community was immune from ICRA claim, and (2) fact issues existed as to whether owner failed to exhaust tribal remedies.

 

 

Lee v. Hawaii, Docket No. 98-1982

 

*ISSUE: By abolishing tort liability, does Hawaii's no-fault law deny due process in violation of 14th Amendment by depriving defendant and Native Hawaiians of right of redress, guaranteed by 1840 Kingdom of Hawaii Constitution, and right of recovery for tort injuries, established by subsequent legislation an judicial decisions?
HISTORY: Petition for certiorari filed June 7, 1999.

Petition for certiorari denied October 4, 1999.

HOLDING BELOW: State v. Lee, 976 P.2d 444 (Haw. App. 1999).

1840 Constitution of Kingdom of Hawaii, upon which defendant relies for his argument that no-fault law is invalid, no longer remains in force.

 

Miccosukee Tribe of Indians v. United States, Docket No. 98-1692

 

*ISSUES: 1. Did Eleventh Circuit correctly hold--in conflict with decisions of this Court--that presidential order may be reviewed and held invalid?

2. Did Eleventh Circuit correctly hold that 1855 Treaty relinquishment of right, title, and interest did not extinguish hunting and fishing rights in territory?

3. May federal court decline to apply this Court's "moderate living" doctrine and order that maximum of one-half hunting and fishing be dedicated to Indian band's harvest even though band has become wealthy as consequence of casino gambling?

HISTORY: Petition for certiorari filed April 21, 1999.

Petition for certiorari denied October 4, 1999.

HOLDING BELOW:  

Miccosukee Tribe of Indians v. United States 163 F.3d 1359 (unpublished opinion, Eleventh Circuit, 1998).

Absent genuine issue of material fact as to Native American tribe's due process and equal protection claims against state and federal defendants, and demonstrations of how further discovery would enable tribe to rebut showing of such absence of genuine issue of material fact, and in absence of federal defendant's violation of their trust duties to tribe, district court did not abuse its discretion in denying tribe's Fed. R. Civ. P. 56(f) motion to postpone consideration of defendant's summary judgment motions and in staying discovery pending disposition of those two motions.

The court of appeals in an unpublished opinion affirmed the district court's decision. The district court held that: (1) water management district was entitled to Eleventh Amendment immunity; (2) federal defendants did not breach duty of trust to tribe; (3) tribe failed to assert constitutionally protected property interest imposing obligation on federal defendants to undertake actions which may have alleviated flooding; (4) federal defendants' failure to alleviate flooding did not infringe on tribe's First Amendment right to freely practice its religion; and (5) tribe failed to show discriminatory purpose in failure of federal defendants to undertake actions which may have alleviated flooding, as required to establish equal protection violation.

 

New Mexico Taxation and Revenue Dept. v. Ramah Navajo School Bd., Docket No. 99-59 (Issues decided below split between this case and Docket No. 99-228.)

 

*ISSUE: Is state gasoline tax imposed on purchase of gasoline by non-Indian gasoline dealer from non-Indian refinery off reservation preempted by 1975 Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 450 et seq., simply because gasoline is subsequently resold to tribal entity on reservation with cost of tax passed on as one of gasoline dealer's imbedded costs?
HISTORY: Petition for certiorari filed July 6, 1999.

Petition for certiorari denied October 12, 1999.

HOLDING BELOW:  

Ramah Navajo Sch. Bd. v. New Mexico Taxation and Revenue Dept., 977 P.2d 1021 (N.M. Ct. App. 1999).

Provisions of ISDEAA, whose purpose is to encourage Indian entities to assume education-related duties that would otherwise be performed by federal agencies and which mandates that Indian entity should receive as much federal funding for performing such services as federal agency would receive, preempt state gasoline taxes to extent that gasoline was sold to tribal school board that operates programs under 1975 statute for its exclusive use, because taxes, assessed against non-Indian distributors and passed along to board as part of cost, undermine act to extent that tribal board must bear economic burden of taxes, that under state law, would not have been imposed if gasoline had been for exclusive use of agency or instrumentality of the United States.

Native American school board, as assignee of gasoline distributors, sought refund of state gasoline taxes assessed against the distributors before gasoline was delivered to Ramah Navajo reservation. The Taxation and Revenue Dept. denied the refund request and the Board sought judicial review. The district court granted summary judgment for the Department and Board appealed. The court of appeals held that: (1) Board could not bring claims for injunctive or declaratory relief under 1983; (2) there was no preemption of the gasoline taxes by implication under ISDEAA; but (3) under general preemption doctrine, the gasoline taxes were preempted to the extent that they made it more costly for the Native American school board to perform services than it would be for federal agencies to perform the same services.

 

New Mexico Taxation and Revenue Dept. v. Ramah Navajo School Bd., Docket No. 99-228 (Issues decided below split between this case and Docket No. 99-59.)

 

*ISSUE: Does Indian tribal governmental entity present cognizable claim under 42 U.S.C. 1983 and 1988 when its rights under 1975 Indian Self-Determination and Education Assistance Act (ISDEAA), 25 U.S.C. 450-450n, have been violated by state excise tax that deprive it of significant, measurable, and predictable financial resources appropriated by Congress for express purpose of improving tribal education, health and environment?
HISTORY: Petition for certiorari filed August 5, 1999.

Petition for certiorari denied October 12, 1999.

HOLDING BELOW:  

Ramah Navajo Sch. Bd. v. New Mexico Taxation and Revenue Dept., 977 P.2d 1021 (N.M. Ct. App. 1999).

Although state entities and officials may be sued under 42 U.S.C. 1983 for injunctive or declaratory relief, U.S. Supreme Court held in National Private Truck Council, Inc. v. Oklahoma Tax Comm'r, 515 U.S. 582 (1995), that 1983 action for injunctive or declaratory relief (and accompanying claim for attorney's fees under 42 U.S.C. 1988) will not lie with respect to imposition of state tax if state provides adequate remedy at law; accordingly, because district court did not err in ruling that N.M. Tax Administration Act provides adequate remedy for Native American school board to challenge disputed taxes, district court's dismissal of 1983 claims in connection with such taxes is affirmed.

Native American school board, as assignee of gasoline distributors, sought refund of state gasoline taxes assessed against the distributors before gasoline was delivered to Ramah Navajo reservation. The Taxation and Revenue Dept. denied the refund request and the board sought judicial review. The district court granted summary judgment for the Department and the board appealed. The court of appeals held that: (1) Board could not bring claims for injunctive or declaratory relief under 1983; (2) there was no preemption of the gasoline taxes by implication under ISDEAA; but (3) under general preemption doctrine, the gasoline taxes were preempted to the extent that they made it more costly for the Native American school board to perform services than it would be for federal agencies to perform the same services.

 

New York v. Seneca Nation of Indians, Docket No. 99-269

 

*ISSUE: Is continued involvement of Seneca Nation of Indians and Tonawanda Band of Seneca Indians in these federal land claim actions against New York barred by 11th Amendment because, notwithstanding intervention of U.S. years actions were commenced, actions are not at instance and under control of responsible federal officers and thus NY has never consented to them?
HISTORY: Petition for certiorari filed August 16, 1999.

Petition for certiorari denied January 10, 2000.

HOLDING BELOW: Seneca Nation of Indians v. New York, 178 F.3d 95 (Second Circuit, 1999)

Indian tribes' claims in their action against NY that are identical to those raised by US as intervenor are not barred by 11th Amendment.

Indian tribes brought action alleging that State of New York had illegally appropriated certain reservation lands. The U.S. intervened as plaintiff. The district court denied state's motion for summary judgment, and the same court denied state's motion to dismiss, and the state appealed. The court of appeals affirmed, holding that state retained its 11th Amendment immunity from action only to extent that tribes raised claims or issues that were not identical to those made by United States.

 

Pink v. Modoc Indian Health Project, Docket No. 99-182

*ISSUES:  

1. Does provision in tribal constitution that expressly limits tribe's jurisdiction to within boundaries of tribe's reservation preclude tribe from creating corporation that would enjoy status of tribe, if corporate offices of such corporation are located, and activities are conducted, outside boundaries of reservation and outside of Indian country?

2. Is tribal corporation, located off reservation and created by consortium of tribes whose constitutions expressly limit their jurisdiction to within confines of their respective reservations, considered tribe for purpose of exemption from Title VII?

3. Is tribal corporation, located off reservation and created by consortium of tribes whose constitutions expressly limit their jurisdiction to within confines of their respective reservations, immune from suit in federal court, when no tribal court exists?

HISTORY: Petition for certiorari filed May 18, 1999.

Petition for certiorari denied October 4, 1999.

HOLDING BELOW:  

Pink v. Modoc Indian Health Project, 157 F.3d 1185 (Ninth Circuit,1998)

Non-profit corporation incorporated by two Indian tribes that provides health services to tribal members under federal Indian self-determination contract with Dept. of Health and Human Services is "tribe" within meaning of Title VII of 1964 Civil Rights Act's exemption of tribes from definition of "employer," thus precluding former employee's suit against corporation alleging Title VII violations.

Former employee of nonprofit corporation created by Indian tribes to deliver services pursuant to Indian Self-Determination and Education Assistance Act (ISDEAA) brought employment discrimination and wrongful termination action against former employer, former supervisor, and Indian Health Services (IHS). The district court dismissed action for lack of subject matter jurisdiction and employee appealed. The court of appeals held that: (1) because Congress did not expressly authorize suits against federal agencies, suit could not be brought against IHS; (2) district court could deny employee permission to substitute United States for IHS; (3) as matter of apparent first impression, corporation was "tribe" exempt from liability under Title VII; (4) ISDEAA could not confer subject matter jurisdiction on district court; (5) corporation did not lose its sovereign immunity by performing health services contract off reservation; (6) supervisor could not be liable under Title VII; and (7) Indian Civil Rights Act (ICRA) did not provide basis for due process claim.

 

Yankton Sioux Tribe v. United States, Docket No. 99-34

 

*ISSUES: 1. Can Indian tribe's sovereign immunity be waived absent clear and unequivocal congressional statement of waiver?

2. Does the Federal Debt Collection Procedure Act, which defines "person" who may be sued as garnishee to include an "Indian tribe," 28 U.S.C. 3002(10), clearly an unequivocally express waiver of Indian tribe's sovereign immunity, and thus subject tribe, as garnishee, to garnishment suit against one of its tribal members.

HISTORY: Petition for certiorari filed June 30, 1999.

Petition for certiorari denied October 12, 1999.

HOLDING BELOW: United States v. Weddell, 187 F.3d 645 (unpublished opinion, Eighth Circuit,1999).

Court affirms district court's ruling that Federal Debt Collection Procedure Act (FDCPA), which defines "person" who may be sued as garnishee to include "an Indian tribe," 28 U.S.C. 3002(10), clearly and unequivocally expressed waiver of Indian tribe's sovereign immunity, and thus subjected tribe, as garnishee, to garnishment suit against one of its members. Reasons given are that Congress has plenary power to statutorily waive a tribe's sovereign immunity and that Congress did so under the FDCPA.

 

Sac & Fox Nation of Oklahoma v. Cuomo, Docket No. 99-1486

*ISSUES:  

1. Under due process standards and standard requiring short and plain statement of grounds upon which court's jurisdiction depends, did petitioners receive fair hearing on complaint alleging that federal officials named as defendants were misallocating federally appropriated funds to detriment of plaintiff Indian tribes invoking federal question jurisdiction under 28 U.S.C. 1361-1362 but not citing specific federal law?

2. Under "appearance of bias" standard of 28 U.S.C. 455(a) and due process required by Fifth Amendment, were petitioners denied their right to fair and impartial magistrate when presiding judge: (a) had, prior to becoming federal judge, previously appeared as attorney of record for one or more of defendants in prior litigation involving plaintiff and same or similar issues, (b) did not document in record actual extent of involvement in prior litigation when denying motion to recuse, and (c) managed litigation in fashion from which one could reasonably infer that plaintiffs were being effectively denied relief without ever being allowed their day in court?

HISTORY: Petition for certiorari filed March 8, 2000.

Petition for certiorari denied June 12, 2000.

HOLDING BELOW: Sac & Fox Nation of Oklahoma v. Cuomo, 193 F.3d 1162, (Tenth Circuit).

Court held that: 1) the complaint failed to allege federal question jurisdiction;2) the Court of Appeals would decline to construe the plaintiffs' appellate brief as an amendment of their complaint to cure that failure; and 3) no basis was shown for disqualification of the judge.

 

Buchanan v. Washington, Docket No. 99-783

 

*ISSUES: 1. Does equal footing terminate temporary hunting rights at statehood?

2. Did the court below ignore ordinary, contemporary, and legal meaning of language "open and unclaimed" contained in applicable treaties?

3. Is the opinion of the court below inconsistent with Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, by restricting Washington's power to regulate off-reservation hunting by members of treaty tribes only after proof of closure of all citizen hunting and proof that species of wildlife is in danger of extinction?

HISTORY: Petition for certiorari filed November 1, 1999.

Petition for certiorari denied February 22, 2000.

HOLDING BELOW: Buchanan v. Washington, 138 Wn.2d.186,, 978 P.2d 1070 (Wash. 1999).

Geographic scope of hunting rights preserved by treaty to Nooksack Indian tribe to which defendant belongs extends only to lands ceded by tribe to the United States and lands upon which tribe traditionally hunted; dismissal of charges against defendant, on ground that treaty allowed him to hunt anywhere in "Territory of Washington" is reversed.

 

Washington v. Buchanan, Docket No. 99-964

 

*ISSUES: 1. Does equal footing terminate temporary hunting rights at statehood?

2. Did the court below ignore ordinary, contemporary, and legal meaning of language "open and unclaimed" contained in applicable treaties?

3. Is the opinion of the court below inconsistent with Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, by restricting Washington's power to regulate off-reservation hunting by members of treaty tribes only after proof of closure of all citizen hunting and proof that species of wildlife is in danger of extinction?

HISTORY: Petition for certiorari filed December 6, 1999.

Petition for certiorari denied February 22, 2000.

HOLDING BELOW: Washington v. Buchanan, Wash., 138 Wash. 2d.186, 978 P.2d 1070.

Indian tribe member was charged with possessing two elk out of season and hunting in wildlife area without valid license. The superior court dismissed the charges and the state appealed. The court of appeals affirmed. Granting review, the supreme court of Washington reversed and remanded, holding that: (1) under treaty that secured to Nooksack Indian tribe the right to hunt "on open and unclaimed lands," hunting right extended to aboriginal hunting grounds; (2) dismissal of charge was error in view of trial court's failure to limit geographic scope of tribe's aboriginal hunting grounds; (3) defendant was entitled to present evidence that state-owned wildlife area was part of tribe's aboriginal hunting grounds; (4) wildlife area where alleged offenses occurred was "open and unclaimed land" within meaning of treaty; and (5) admission of State of Washington into the Union "on equal footing" with original states did not abrogate treaty hunting rights of Indians living in Washington.

 

Mannatt v. United States , Docket No. 99-892

 

*ISSUES: 1. May members of Indian tribe unilaterally alter historic boundary line by removing existing fence and erecting new fence on land that was formerly private property?

2. May federal government change boundary line of executive order Indian reservation by resurveying Indian trust land without congressional approval?

3. May private properties affected by resurvey of Indian trust land challenge validity of resurvey in U.S. district court?

HISTORY: Petition for certiorari filed November 24, 1999.

Petition for certiorari denied January 25, 2000.

HOLDING BELOW: Mannatt v. United States, 185 F.3d 868 (unpublished opinion, Ninth Circuit, 7/1/99).

Property owners brought quiet title action against United States, as trustee of reservation land, to resolve boundary dispute with Indian tribe, and sought administration of water rights allocated by 1924 decree. United States moved to dismiss on jurisdictional grounds. The district court held that: (1) United States was indispensable party, whose joinder was precluded by Indian lands exception to waiver of sovereign immunity in Quiet Title Act (QTA), and (2) 1952 McCarran Amendment could not be applied retrospectively to bind United States retroactively by 1924 adjudication. The court of appeals affirmed in an unpublished opinion.

 

Campbell v. Sletten, Docket No. 99-1320

 

ISSUES*: 1. Does the deputy sheriff or city police officer have requisite authority to deprive enrolled member of Indian community of his federally protected land assignment without the participation of United States in the form o federal action by means of federal writ, and does taking of Indian's federally protected land assignment by local peace officers acting under the color of state law violate federal civil rights legislation?

2. Does "reasonable belief of reasonable suspicion" standard proposed by district court in this case have any legal basis, and does such standard meet requisite objective standard of probable cause?

3. Did district court improperly adjudicate disputed issues of material fact in granting qualified immunity to defendant officer?

HISTORY: Petition for certiorari filed February 2, 2000.

Petition for certiorari denied April 17, 2000.

HOLDING BELOW: Campbell v. Sletten, 198 F.3d 249, (Eighth Circuit unpublished, 11/4/99). Court affirmed district court's decision granting summary judgment in favor of the police officers on the basis of qualified immunity.
 

Miccosukee Tribe of Indians of Florida, et al, v. Tamiami Partners Ltd. Docket No. 99-1013

 

*ISSUES: 1. Do federal courts have subject matter jurisdiction over a contract dispute between management contractor and Miccosukee Tribe?

2. Does the Indian Gaming Regulatory Act provide management contractors with private cause of action against Indian tribes?

3. Did the Eleventh Circuit err in implying waiver of tribe's sovereign immunity under IGRA?

HISTORY: Petition for certiorari filed December 14, 1999.

Petition for certiorari denied March 20, 2000.

HOLDING BELOW:  

Miccosukee Tribe of Indians of Florida et. al., v. Tamiami Partners, Ltd.

177 F.3d 1212 (Eleventh Circuit).

Court of Appeals held that: 1) issues of sovereign immunity and subject matter jurisdiction were involved; 2) the issue whether the operator had failed to state claim was not before the Court of Appeals; 3) a federal question was stated by the operator's claims that the tribe had an obligation to arbitrate disputes related to their rejection of the operator's gaming license applications; 4) the district court could exercise supplemental jurisdiction over state-law claims; 5) the tribe waived its sovereign immunity as to certain claims; and 6) Ex parte Young doctrine did not allow the operator to sue tribal officers.

 

Roberts v. United States, Docket No. 99-1174.

 

ISSUES: 1. Was the Tribal Complex owned by the United States in trust for the Choctaw Nation considered "Indian Country?"

2. Was there an error in the jury instructions which relieved the government of its burden of proving an essential element of the crime by failing to provide evidence at trial the Tribal Complex was Indian Country?

3. Was the testimony of women who were not the victims of charged offenses admissible as evidence?

HISTORY: Petition for certiorari denied May 15, 2000.
HOLDING BELOW: Roberts v. United States, 185 F.3d 1125 (Tenth Circuit, 8/3/99).

Court held that: 1) the Tribal Complex owned by the United States in trust for the Indian Nation was "Indian Country" for purposes of the Major Crimes Act; 2) jury instructions did not impermissibly diminish the government's burden of proof or relieve the jury of its responsibility to find al essential elements of offenses; 3) evidence supported the conclusion that offenses of the conviction occurred at the Tribal Complex; 4) the testimony of the women who alleged they were sexually abused by the defendant was admissible under other acts rule; 5) opening and closing argument statements in which the prosecutor allegedly improperly vouched for witness credibility and referred to evidence not in the record were harmless error; and 6) two-level enhancement under Sentencing guidelines for abuse of public position of trust was warranted.

 

 

Ysleta del Sur Pueblo v. Laney, Docket No. 99-1610.

 

*ISSUES: 1. Does the Eleventh Amendment bar suits against state officials under Ex parte Young, 209 U.S. 123 (1908), to recover possession of property?

2. Does decision of the Fifth Circuit that Indian tribes cannot recover possession of real property under Ex parte Young violate federal government's trust responsibility to tribes?

3. Does 1834 Indian Non-Intercourse Act abrogate the states' Eleventh Amendment immunity to suits by Indian tribes to recover possession of tribal lands?

HISTORY: Petition for certiorari filed April 5, 2000.

Petition for certiorari denied May 22, 2000.

HOLDING BELOW: Ysleta del Sur Pueblo v. Laney, 199 F.3d 281, (Fifth Circuit).

Court held that: 1) the state was the true party in interest for purposes of the Eleventh Amendment immunity, though state officials were named in their individual capacities; 2) the Non-Intercourse Act does not abrogate the states' sovereign immunity under the Eleventh Amendment; and 3) the suit could not proceed under the Ex parte Young doctrine.


Ysleta del Sur Pueblo v. Texas, Docket No. 99-1608

 

*ISSUE Did the states, by adopting the Fourteenth Amendment, waive their Eleventh Amendment immunity by consenting under "plan of Convention" to suits based on takings clause of Fifth Amendment?
HISTORY: Petition for certiorari filed April 5, 2000.

Petition for certiorari denied May 15, 2000.

HOLDING BELOW: Ysleta del Sur Pueblo v. Texas, 207 F.3d 658, (Fifth Circuit unpublished 1/6/00).

Court held that the Fifth Amendment's takings clause does not abrogate the states' Eleventh Amendment immunity by virtue of incorporation into the Fourteenth Amendment.


Yakama Indian Nation v. Washington Dept. of Revenue, Docket No. 99-636

 

*ISSUE: Under College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666,, may state abrogate Indian tribe's sovereign immunity by seizing tribe's property and conditioning its return on tribe's willingness to waive its sovereign immunity and submit to state forfeiture proceedings?
HISTORY: Petition for certiorari filed October 12, 1999.

Petition for certiorari denied January 18, 2000.

HOLDING BELOW: Yakama Indian Nation v. Washington Dept. of Revenue, 176 F.3d 1241 (9th Cir. 1999)

Yakima Indian Nation brought action for declaratory and injunctive relief alleging that the Washington Dept. of Revenue violated Nation's sovereign immunity by seizing unstamped packages of cigarettes owned by and being transported to Nation. The Nation removed administrative proceeding for forfeiture of cigarettes to the district court. The district court dismissed action for declaratory and injunctive relief, denied Nation's request to amend complaint to include ultra vires claims against state officers, and remanded forfeiture proceeding and the Nation appealed. The court of appeals affirmed and dismissed in part, holding that: (1) State did not waive its Eleventh Amendment immunity; (2) Nation could not maintain action against officials in their individual capacities; and (3) court of appeals lacked jurisdiction to review remand order.

 

Osage Tribal Council v. Department of Labor, Docket No. 99-1482

 

*ISSUE: Did the Tenth Circuit err in holding that the Indian tribe's sovereign immunity was unmistakably waived by Congress in definition provisions of SDWA, when the statute also provides: "For the purposes of this chapter the term 'Federal Agency' shall not be construed to refer to or include any American Indian Tribe, nor the Secretary of the Interior in his capacity as trustee of Indian Lands"?
HISTORY: Petition for certiorari filed March 6, 2000.

Petition for certiorari denied June 12, 2000.

HOLDING BELOW:

 

Osage Tribal Council v. Department of Labor, 187 F.3d 1174 (Tenth Circuit).

Court of Appeals held that: 1) order was reviewable under collateral order doctrine; 2) Congress waived tribal sovereign immunity form the suit under whistle blower provision; 3) the amendment to SDWA enacted in 1977 stating that 1977 amendments did not waive sovereignty over Indian lands did not affect the waiver of tribal sovereignty contained in the original SDWA; $) any derogation of the Tribe's treaty right to exclude persons from land reserved to it caused by whistle blower provision did not preclude application of provision to Tribe; and 5) the Secretary of Labor did not violate the federal government's trust responsibility toward the Tribe.

 

Gina Davis v. Mille Lacs Band of Chippewa Indians, et al. Docket No. 99-1498.

 

*ISSUES: 1. Is exhaustion of tribal remedies required when tribe has unequivocally waived its sovereign immunity from liability for torts committed against plaintiff?

2. Can exhaustion of tribal remedies doctrine abolish federal court's jurisdiction to review tribal court's assertion of jurisdiction over federal claim, when tribal appellate court refused review because plaintiff had missed deadline?

HISTORY: Petition for certiorari filed March 3, 2000.

Petition for certiorari denied May 1, 2000.

HOLDING BELOW: Davis v. Mille Lacs Band of Chippewa Indians, 193 F.3d 990 (Eighth Circuit).

Court held that: 1) any waiver by the tribe of sovereign immunity over the member's claims did not eliminate the exhaustion requirement, and 2) the member failed to exhaust her tribal remedies prior to bringing federal claim.

 

Oglala Sioux Tribal Public Safety Department v. Babbitt, Secretary of the Interior, Docket No. 99-1239

 

*ISSUE: Did Congress, by "not withstanding" clause in 25 U.S.C. 450j-1(b), avoid, and in effect, eliminate its contractual obligation arising form 25 U.S.C. 450 et seq., thereby vitiating the entire Indian Self-Determination Act?
HISTORY: Petition for certiorari filed January 24, 2000.

Petition for certiorari denied May 20, 2000.

HOLDING BELOW: Oglala Sioux Tribal Public Safety Department v. Babbitt, Secretary of the Interior, 194 F.3d 1374 (Federal Circuit).

Court held that: 1) Any funds provided under ISDEAA contract are subject to the availability of appropriations; and 2) the Secretary was not collaterally estopped from providing the contractor with less than full funding of its indirect costs.

 

Flandreau Santee Sioux Tribe v. United States Docket No. 9-1755.

 

ISSUE: Is a tribe considered a "person" within the meaning of 26 U.S.C. 6675(a)?
HISTORY: Petition for certiorari denied June 12, 2000
HOLDING BELOW: Flandreau Santee Sioux Tribe v. United States, 197 F.3d 949 (Eighth Circuit).

Court held that a Native American tribe is a "person" subject to an Internal Revenue Code section providing for the imposition of a penalty for seeking an excessive refund of the excise tax on gasoline. Reversed. Remanded to the district court to address the Tribe's claim of "reasonable cause" as an alternative basis for holding the Tribe not liable for the penalty.

 

Lynnette M. Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, Docket No. 99-8739

 

ISSUES: 1. Did the court of Appeals err in viewing the ASHA as a tribe?

2. Did federal question jurisdiction exist?

HISTORY: Petition for certiorari denied May 22, 2000.
HOLDING BELOW: Duke v. Absentee Shawnee Tribe of Oklahoma Housing Authority, 199 F.3d 1123 (Tenth Circuit).

Court held that ASHA was an Indian tribe exempt from Title VII even though it was a state agency.

 

Ysleta del Sur Pueblo v. Texas, Docket No. 99-958

 

*ISSUE: Does the Eleventh Amendment bar the Pueblo's action against Texas for declaration that federal law permits its gaming activities when "nothing is demanded form the state (and no) claim against it of any description is asserted or prosecuted," see Cohens v. Virginia, 19 U.S. (6 Wheat.)264, 410 (1821)?
HISTORY: Petition for certiorari filed December 6, 1999.

Petition for certiorari denied February 22, 2000.

*HOLDING BELOW: Ysleta del sur Pueblo v. Texas, 192 F.3d 126, (Fifth Circuit unpublished, 8/5/99).

Court held that the Indian tribe failed to establish standing and ripeness requirements necessary to invoke the court of appeals' jurisdiction under Article III, and so the district court's dismissal, on Eleventh Amendment immunity grounds, of the tribe's suit against the state seeking declaration that the tribe's gaming activities at its casino are in compliance with Texas law is affirmed on alternate ground.

 

Estate of Red Wolf v. Burlington Northern Railroad Company, Docket No. 99-1174.

 

ISSUE: Does Tribal Court have jurisdiction over a tort claim arising from an accident on a right-of way granted to a railroad by Congress?
HISTORY: Petition for certiorari denied May 15, 2000.
HOLDING BELOW: Burlington Northern Railroad Co. v. Red Wolf, 196 F.3d 1059 (Ninth Circuit).

Court held that the Tribal Court lacked jurisdiction over tribal members' personal injury action, inasmuch as right-of-way granted to railway's predecessor would be deemed alienated to non-Indians, and neither exception to Montana v. United States was applicable.

 

Lord v. Babbitt, Docket No. 99-1636

 

*ISSUES: 1. Does the Fifth Amendment's guarantee of due process require government to have provided petitioner with sufficient notice, reasonable time to comply, and oral hearing before government denied his Alaska Native Allotment, or may government instead eliminate requirement of oral hearing by promulgating regulation?

2. Was petitioner's Alaska Native Allotment application "pending before the Department of Interior on or before December 18, 1971" within meaning of Section 905(a) of 1980 Alaska National Interest Lands Conservation Act, 43 U.S.C. 1634(a), so that his allotment either is legislatively approved or must be adjudicated?

HISTORY: Petition for certiorari filed April 10, 2000.

Petition for certiorari denied June 5, 2000.

HOLDING BELOW: Lord v. Babbitt, 188 F.3d 513, (Ninth Circuit unpublished, 8/19/00).

Court affirms the judgment of the district court in dismissing the action. Lord received notice of the termination of his application for an allotment in 1963 and not bring action until 1994. The six-year statute of limitations set forth in 28 U.S.C. 2401(a) bars this action. Lord argues that his claim should be adjudicated under the Quiet Title Act, 28 U.S.C. 2409a, however, even if that act were applicable, the action would be barred by the twelve-year statute of limitations set forth in 2409a(g). There was no basis for equitable tolling of either of these statutes of limitations.

 

Salt River Project Agricultural Improvement and Power District v. Dawavendewa, Docket No. 98-1628

 

ISSUES: 1. Does 9th Circuit's interpretation frustrate Congress's intent of promoting tribal sovereignty and self-governance, particularly in light of Congress's recent explicit endorsement of tribal-based preferences in context of Indian Self-Determination and Education Assistance Act (ISDEAA)?

2. Do principles that this Court announced in Morton v. Mancari, 417 U.S. 535 (1974), require conclusion that preferences given to Indians based on their tribal affiliation are political (and not based on race or national origin) and are therefore beyond scope of Title VII of 1964 Civil Rights Act altogether?

HISTORY: Petition for certiorari filed April 9, 1999.

Solicitor General invited to file a brief expressing the views of the United Sates, June 7, 1999.

Petition for certiorari denied January 10, 2000.

Motion of Navajo nation for leave to file a brief as amicus curiae granted January 10, 2000.

HOLDING BELOW: Dawavendewa v. Salt River Project Agricultural Improvement and Power District, 154 F.3d 1117 (Ninth Circuit 1998)

Provision of Title VII that permits employers to favor Indians over non-Indians, 42 U.S.C. 2000e-2(i), does not authorize discrimination based on tribal affiliation. Applicant brought Title VII action alleging that employer discriminated against him on basis of national origin by denying him a position because he was member of Hopi Tribe and employer had lease agreement allowing it to operate generating station on Navajo land in return for granting employment preference to Navajos. The district court dismissed action and the applicant appealed. The court of appeals reversed and remanding, holding that: (1) discrimination in employment on basis of membership in a particular tribe constitutes national origin discrimination, and (2) as matter of first impression, Title VII's Indian preferences exemption does not permit employer to discriminate on basis of tribal affiliation.

 

South Dakota v. Yankton Sioux Tribe, Docket No. 99-1490

 

*ISSUE: Did 1894 statute ratifying agreement between Yankton Sioux tribe and United States disestablish Yankton Sioux reservation (as South Dakota Supreme Court held) or does reservation still exist, consisting of more than 1,000 acres of ceded lands, contrary to precise holding of this court in South Dakota v. Yankton Sioux Tribe, 522 U.S. 329, plus potentially thousands of other scattered and noncontiguous acres (as the Eighth Circuit held)?
HISTORY: Petition for certiorari filed March 7, 2000.

Petition for certiorari denied June 26, 2000.

HOLDING BELOW: Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, (Eighth Circuit).

Court held that Reservation has not been disestablished, but it has been diminished by loss of those lands originally allotted to tribal members which have passed out of Indian hands

 

Yankton Sioux Tribe v. Gaffey, Docket No. 99-1683

 

*ISSUES:  

1. Do allotments made under General Allotment Act cease to be "Indian Country" if they are conveyed to non-Indians?

2. Was Yankton Sioux Reservation diminished by conveyance of individual Indian allotments to non-Indians in fee simple?

HISTORY: Petition for certiorari filed March 6, 2000.

Petition for certiorari denied June 26, 2000.

HOLDING: Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010, (Eighth Circuit).

Court held that Reservation has not been disestablished, but it has been diminished by loss of those lands originally allotted to tribal members which have passed out of Indian hands.

 

IV. Petitions for certiorari review were filed in one (1) case involving or affecting Native Americans.

 

 

Great Western Casinos Inc. v. Morongo Band of Mission Indians, Docket No. 99-1756

 

*ISSUES: 1. Does the doctrine of sovereign immunity accorded to Indian tribes extend to non-tribe defendants, including tribal council, tribal council members, tribal members, and the tribe's attorneys?

2. Is action against non-tribe defendants preempted by federal law despite Congress' mandate, codified at 28 U.S.C. 1360, specifying that California's state courts shall have jurisdiction over civil causes of action in which Indians are party?

HISTORY: Petition for certiorari filed May 1, 2000.
HOLDING BELOW: Great Western Casinos Inc. v. Morongo Band of Mission Indians, Cal Ct

App., 74 Cal.4th 1407, 88 Cal. Rptr. 2d 828.

Court held that: 1) the court was not limited to reviewing the allegations of the complaint to determine the existence of subject matter jurisdiction; 2) the tribe did not waive its sovereign immunity for purposes of this suit, 3) sovereign immunity applied to tribal members, law firm, and member of the firm; and 4) federal law has completely preempted the field of Indian gaming, thus the state court had no jurisdiction over the claims raised in the complaint.

jaf

* "ISSUES" reproduced with permission from The United States Law Week, Volume 68,

No. 48, p. 4525 (June 20, 2000);

No. 3, p.3040 (July 20, 1999)

No. 2, p. 3030 (July 13, 1999)

No.6, p. 3118 (August 17, 1999)

No. 4 p. 3086 (August 13, 1999)

No. 3, p. 3055 (July 20, 1999)

No. 4, p. 3097 (August 13, 1999)

No. 8, p. 3148 (August 31, 1999)

No. 9, p. 3157 (September 14, 1999)

No. 7, p. 3131 (August 24, 1999)

No. 4, p. 3096 (August 3, 1999)

No. 35, p. 3603 (March 21, 2000)

No. 27, p. 3485 (January 25, 2000)

No. 27, p. 3485 (January 25, 2000)

No. 27, p. 3477 (January 25, 2000)

No. 35, p. 3603 (March 21, 2000)

No. 26, p. 3468 (January 18, 2000)

No. 39, p. 3662 (April 18, 2000)

No. 35, p. 3603 (March 21, 2000)

No. 36, p. 3621 (March 28, 2000)

No. 32, p. 3557 (February 29, 2000)

No. 39, p. 3662 (April 18, 2000)

No. 19, p. 3341 (November 23, 1999)

No. 25, p. 3442 (January 11, 2000)

No. 46, p. 3746 (June 6, 2000)

No. 3, p. 3050 (July 20, 1999)

No. 37, p. 3637 (April 4, 2000)

No. 41, p. 3692 (May 2, 2000)

No. 44, p. 3732 (May 23, 2000)

Copyright 2000 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com





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