CASES INVOLVING OR AFFECTING NATIVE AMERICANS
BEFORE THE U.S. SUPREME COURT
1998-1999 TERM


as of July 13, 1999



I. Opinions delivered in four (4) cases involving or affecting Native Americans:


Amoco Production Co. v. Southern Ute Indian Tribe, Docket No. 98-830

SUBJECT: Mineral rights
ISSUE: In reserving to U.S. "coal" in lands patented under 1909 and 1910 Coal Land Acts, 30 U.S.C. 81, 83-85, while passing surface land and all other minerals (including natural gas) to patentee, did Congress reserve only solid rock ful commonly known as "coal," but not natural gas in coal formations?
HISTORY: Petition for certiorari filed November 18, 1998
Petition for certiorari granted January 29, 1999.
Oral Argument heard on April 19, 1999.
Decided June 7, 1999.
HOLDING: The term "coal" as used in the 1909 and 1910 Acts does not encompass coalbed methane gas.

Arizona Dept. Of Revenue v. Blaze Construction Co., Docket No. 97-1536

SUBJECTS: Taxation, Indian law preemption doctrine, federal contracts
ISSUE: Is state tax on contractor doing business with United States on Indian reservation preempted when Congress has not expressly provided for such preemption and there is no infringement on tribal sovereignty because no tribal funds are used and no tribe is party to contract?
HISTORY: Petition for certiorari filed March 16, 1998.
Petition for certiorari granted May 18, 1998.
Oral argument was heard on December 8, 1998.
Decided March 2, 1999.
NOTE: The United States argued on behalf of the Arizona Department of Revenue/State of Arizona in FAVOR of state taxation.

El Paso Natural Gas Co. v. Neztsosie, Docket No. 98-6

SUBJECTS: Exhaustion of tribal remedies, preemption, tribal court jurisdiction
ISSUES: 1. When non-Indians have been sued in tribal court solely under tribal-law causes of action that have been preempted by federal law, must those parties exhaust all tribal remedies before federal court may consider preemption issue?
2. When tribal court asserts adjudicatory jurisdiction against non-Indians involving subject over which tribe has no regulatory jurisdiction, must those parties exhaust all tribal remedies before seeking relief in federal court?
3. Did court of appeals improperly reverse, sua sponte, injunction from which enjoined parties had not appealed?
HISTORY: Petition for certiorari filed June 26, 1998 Petition for certiorari granted October 13, 1998. Oral Argument heard on March 2, 1999. Decided May 3, 1999.
HOLDING: (1) The Court of Appeals erred in addressing an issue that was not brought up on cross-appeal. There are exceptions to this rule, but no exception would be made based on "comity considerations" and (2) The doctrine of tribal court exhaustion does not apply in a case, which if brought in a state court would be subject to removal.

Minnesota v. Mille Lacs Band of Chippewa Indians, Docket No. 97-1337

SUBJECTS: Hunting and fishing rights, Treaties - Express abrogation
ISSUES: 1. Does treaty provision that gives Indian bands right to hunt and fish "during the pleasure of the President" create only temporary rights that are extinguished when state is admitted to Union on equal footing with original 13 states?
2. Does treaty ceding to U.S. "All right, title and interest of whatsoever nature" in previously ceded territory constitute express abrogation of hunting and fishing rights reserved in previous treaty under this court's holding in Oregon Dep't of Fish and Wildlife v. Klamath Indian Tribe?
3. Did president act within scope of his congressional authority when he revoked Indians' right to hunt and fish under treaty that guaranteed only those rights "during the pleasure of the President of the United States"?
HISTORY: Petition for certiorari filed February 17, 1998
Petition for certiorari granted June 8, 1998.
Oral Argument heard on December 2, 1998.
Decided March 24, 1999.
HOLDING:
The Chippewa retain the usufructuary rights guaranteed to them by the 1837 Treaty:
a.) the 1850 Executive Order did not terminate usufructuary rights,
b.) the Mille Lacs Band did not relinquish its 1837 Treaty rights in the 1855 Treaty, which relinquished title to certain lands but did not mention hunting, fishing, and gathering rights, and
c.) the Chippewa's usufructuary rights were not extinguished when Minnesota entered the Union.
II. Petitions for certiorari review was granted in one (1) case involving or affecting Native Americans.


Rice v. Cayetano, Docket No. 98-818

SUBJECTS: Voting, Civil Rights - equal protection
ISSUE: Did Court of Appeals err in holding that 14th and 15th Amendments permit adoption of explicit racial classification that restricts right to vote in statewide elections for state officials?
HISTORY: Petition for certiorari filed November 17, 1998. Petition for review granted March 22, 1999.
HOLDING BELOW: 146 F.3d 1075
Court of Appeals held that: (1) permitting only Hawaiians to vote in special elections for trustees of trust that was lawfully established for their benefit did not deny non-Hawaiians right to vote in any meaningful sense, and (2) restriction did not violate equal protection even under strict scrutiny.


III. Petitions for certiorari review were denied, or received summary disposition, in twenty-two (22) cases involving or affecting Native Americans.


Absentee Shawnee Tribe of Oklahoma v. Citizen Band Potawatomi Indian Tribe of Oklahoma, Docket No. 98-281

SUBJECTS: Reservations - creation and establishment, Secretary of the Interior - authority to place land in trust
ISSUE: Pursuant to discretionary authority delegated to Secretary of Interior under statute, can Secretary place land in trust for Absentee Shawnee Tribe of Oklahoma, which shares common former reservation area with Potawatomi Tribe within State of Oklahoma, without obtaining consent from Citizen Band Potawatomi Tribe when Secretary has determined that language and legislative history of cession acts of both tribes, when considered together with Shoshone Tribe v. United States, 299 U.S. 476 (1937), support conclusion that Congress intended to recognize and confirm rights of Absentee Shawnee in Potawatomi reservation?
HISTORY: Petition for certiorari filed August 13, 1998. Petition for certiorari denied October 19, 1998.
HOLDING BELOW: 142 F.3d 1325
The Court of Appeals held that statute setting out agreements by Potawatami Tribe and Absentee Shawnees to relinquish their claims to former reservation did not abrogate Potawatami Tribe's treaty right to exclusive use and occupancy of its former reservation, and Secretary of Interior thus was required to obtain consent of Potawatami Tribe before acquiring such land in trust for Shawnee Tribe.


Aitkin County, Minn. v. Mille Lacs Band of Chippewa Indians, Docket No. 97-1356

SUBJECTS: Hunting and fishing rights, Moderate Living doctrine
ISSUES:
1. Did Eighth Circuit correctly hold--in conflict with decisions of this court--that presidential order may be reviewed and held invalid?
2. Did Eighth Circuit correctly hld 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 thought band has become wealthy as consequence of casino gambling?
HISTORY: Petition for certiorari filed February 17, 1998
Petition for certiorari denied March 29, 1999.
HOLDING BELOW:
124 F.3d 904
The Court of Appeals held that: (1) action was not barred by Eleventh Amendment; (2) tribe's right to hunt, fish, and gather on lands previously ceded to United States was not extinguished by 1850 Executive Order; (3) rights were not extinguished by subsequent treaty; (4) claims were not barred by res judicata; (5) tribe's rights were not extinguished by equal footing doctrine when Minnesota was admitted to union; (6) moderate living doctrine did not require allocation of resources; (7) private lands on which members of Indian tribe could exercise their treaty rights to hunt, fish and gather did not include private land to which owner consent to hunt and fish was necessary.


Alexander v. United States, Docket No. 98-1052

(One of four petitions for certiorari filed appealing decision in case below United States v. Washington, 157 F.3d 630 (9th Cir. 1998)).
SUBJECTS: Hunting and fishing rights, Treaties - interpretation, Equal footing doctrine
ISSUES: 1. Does treaty "right to take fish ... in common with all citizens" grant to Indian tribes right to enter on and harvest shellfish from thousands of parcels of privately owned tidelands that were conveyed in fee by state of Washington?
2. By posting their property to exclude others, do private owners "stake" tidelands within meaning of treaty proviso prohibiting Indian tribes from taking "shellfish from any beds staked or cultivated by citizens"?
HISTORY: Petition for certiorari filed December 22, 1998. Petition for certiorari denied April 5, 1999.
HOLDING BELOW: 157 F.3d 630The Court of Appeals held that: (1) treaties granted tribes a right to take shellfish that was coextensive with their right to take fish except as expressly limited by proviso; (2) proviso, prohibiting tribes from taking shellfish "from any beds staked or cultivated by citizens," excluded tribes only from artificial shellfish beds created by private citizens; (3) doctrine of laches was inapplicable to tribes' assertion of shellfishing rights; (4) District Court abused its discretion in deeming natural shellfish beds that had been enhanced by human means "de facto artificial beds" upon which tribes could not take shellfish; (5) tribes' share from commercial growers' beds would be limited to 50% of shellfish that would have been harvested had beds not been enhanced through growers' labor; (6) State of Washington was not "citizen" for purposes of proviso; (7) finding that one-half pound of mature manila clams per square foot was minimum quantity that would support commercial livelihood was not supported by sufficient evidence; (8) District Court did not abuse its discretion in requiring tribes to demonstrate absence of access before being allowed to cross privately owned upland property to reach shellfishing areas; (9) District Court did not abuse its discretion in subjecting tribes' shellfishing rights to certain time, place, and manner restrictions; (10) tribes' due process rights were violated by process for selecting special master to resolve shellfishing disputes; and (11) District Court could authorize special master to award damages against individual tribal members.


Bering Strait School District v. United States, Docket No. 98-172

SUBJECTS: Statutory interpretation, Federal benefits - health services
ISSUE: When federal statutory right of recovery excludes recovery against "any State," should that exclusion apply to instrumentality created and funded by Alaska legislature for sole purpose of providing constitutionally mandated state educational services?
HISTORY: Petition for certiorari filed July 24, 1998. Petition for certiorari denied November 2, 1998.
HOLDING BELOW: 138 F.3d 1281Court of Appeals held that district was not a "state" exempt from provision of Indian Health Care Improvement Act allowing United States to recover reasonable expenses incurred in providing health services to eligible Alaska Natives.


Clark v. United States, Docket No. 98-876

SUBJECT: Criminal jurisdiction - Major Crimes Act, Sovereignty, Tribal Self-Government
ISSUES: 1. May federal judges extend criminal jurisdiction under Section 241 to tribal elections, absent any express congressional authority for federal prosecution of tribal election fraud, and contrary to both legislative history of Indian Civil Rights Act and this court's commitment to preserving inherent tribal sovereignty by recognizing exclusive right of tribes to decide cases involving purely tribal matters or issues of tribal self-government?
2. When does federal criminal jurisdiction exist to prosecute Indian for committing crime against another Indian in Indian country?
HISTORY: Petition for certiorari filed November 25, 1998. Petition for certiorari denied April 5, 1999.
HOLDING BELOW: 152 F.3d 831 Court of Appeals held that: (1) federal government had jurisdiction to prosecute crime perpetrated by one Indian against another under federal criminal statute of general applicability, even if the statute was not among those enumerated in Indian Major Crimes Act (IMCA); (2) crimes of general applicability remained within the subject-matter jurisdiction of the federal courts despite passage of P.L. 280, under which jurisdiction over crimes enumerated in IMCA was delegated to certain states; (3) conspiracy between Treasurer and Councilman to commit voter fraud in connection with council elections could be prosecuted in federal court; (4) conspiracies to misuse tribal funds and conspiracy to defraud voters in tribal elections were properly joined in indictments of Councilman and Chairman; (5) Councilman's and Chairman's 4th and 5th Amendment rights were not violated by introduction of evidence obtained by the IRS during civil audit; (6) evidence that checks referenced in money laundering counts were deposited in institutions insured by FDIC was sufficient to prove interstate commerce nexus required for money laundering convictions; and (7) money laundering sentences of Chairman and Councilman could not be enhanced for abuse of position of public trust.


Coeur D'Alene Tribe v. Missouri ex rel. Nixon, Docket No. 98-1848

SUBJECT: Gaming, Federal court jurisdiction - preemption of state law
ISSUE: IGRA does not preempt states' attempts to regulate or prohibit gaming activities on non-Indian lands. If the Tribe's lottery is being conducted on its lands, then the IGRA completely preempts the State's attempt to regulate or prohibit. But if the lottery is being conducted on Missouri lands (i.e., if the bettor is placing the call into Internet lottery from Missouri), the IGRA does not preempt the state law claims--nor does it provide a federal defense--and the case must be remanded to state court.
HISTORY: Petition for certiorari denied June 24, 1999.
HOLDING BELOW: 164 F.3d 1102 The Court of Appeals held that: (1) plaintiff's voluntary dismissal without prejudice of a remaining defendant renders a previous order finally dismissing other defendants immediately appealable; (2) District Court lacked jurisdiction in first action, following State's appeal from district court's order dismissing for failure to state claim, to recast such order as one for summary judgment, so as to divest Court of Appeals of jurisdiction; (3) order appealed from in second action merely transferred venue and thus was not appealable; and (4) IGRA does not preempt states' attempts to regulate or prohibit gaming activities on non-Indian lands.


Cowboy Auto Sales, Inc. v. Halwood, Docket No. 98-858

SUBJECT: Tribal court jurisdiction - full faith and credit
ISSUES: 1. Did New Mexico court of appeals wrongly conclude that Navajo Nation Chinle District Court in Arizona possesses jurisdiction to impose punitive damages on nonmember, non-Indian, New Mexico citizen?
2. Does judicial review encompass power claimed by New Mexico court of appeals to interpret 28 U.S.C. 1738 and art. IV, Section 1 of Constitution to alter its grant of legislative jurisdiction to hold that Navajo Nation Indian reservation is separate territory of United States that requires extension of full faith and credit to Navajo tribal court judgment from Arizona?
HISTORY: Petition for certiorari filed November 23, 1998. Petition for certiorari denied February 22, 1999.


Evehema v. Indian Health Services, Docket No. 98-6365

SUBJECTS: Sovereign immunity
ISSUE: Elders of village located within Indian reservation brought suit to enjoin federal agencies from proceeding with construction of wastewater treatment facility pending the completion of environmental impact statement (EIS). On defendants' motion to dismiss for lack of subject matter jurisdiction or for failure to join the tribe as alleged indispensable party, the District Court held that: (1) tribe was "necessary party"; (2) sovereign immunity enjoyed by tribe from nonconsensual actions in state and federal court prevented it from being joined as party; and (3) tribe was indispensable to lawsuit, such that its nonjoinder necessitated dismissal of suit.
HISTORY: Petition for certiorari denied January 19, 1999.
CASE BELOW: 141 F.3d 1182


Keweenaw Bay Indian Community v. United States, Docket No. 98-50

SUBJECT: Indian Gaming Regulatory Act
ISSUES: Tribe seeks declaratory judgment that its Class III gaming activities were lawful and sought to enjoin government from prohibiting gaming.
HISTORY: Petition for certiorari filed June 30, 1998. Petition for certiorari denied October 13, 1998.
HOLDING BELOW: 136 F.3d 469Court of Appeals held that provision of Indian Gaming Regulatory Act (IGRA), generally prohibiting gaming on certain Indian lands acquired after October 17, 1988, applied to Class III gaming authorized by valid tribal-state compact.


Kiowa Tribe of Oklahoma v. Hoover, Docket No. 97-2018

SUBJECT: Sovereign immunity
ISSUE: Is federally recognized Tribe that has not waived its sovereign immunity to suit subject to jurisdiction of state court because commerce from which this suit arises took place, in part, outside tribal territory.
HISTORY: Petition for certiorari filed June 15, 1998. Judgment vacated October 5, 1998.
HOLDING BELOW: 957 P.2d 81Oklahoma Supreme Court held that Tribe was subject to suit in state court in present action and was not shielded by sovereign immunity. U.S. Supreme Court vacates judgment and remands case in light of Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700, 140 L.Ed.2d 981 (1998).


Leland, Mich. v. Grand Traverse Band of Ottawa and Chippewa Indians, Docket No. 98-485

SUBJECTS: Hunting and fishing rights, Treaties - Interpretation
ISSUE: 1. Does Sixth Circuit's decision conflict with decisions of this court because court of appeals rewrote treaty provisions to expand implied right to fish to include right to moor commercial fishing vessels in marinas constructed by third parties more than 130 years after treaty was signed?
2. Did court of appeals correctly expand implied off-reservation treaty rights to grant tribal members right to occupy public and private lands not owned by tribe or its members?
3. Should this court resolve conflict between Sixth and Ninth Circuits and address important federal question of whether attorneys' fees may be awarded pursuant to 42 U.S.C. 1988 in cases in which federal court is interpreting treaties to determine scope of reserved rights?
HISTORY: Petition for certiorari filed September 9, 1998. Petition for certiorari denied December 7, 1998.
HOLDING BELOW: 141 F.3d 635The Court of Appeals held that: (1) treaties giving band right of access to traditional fishing grounds gave band right of transient mooring of commercial fishing vessels at municipal marinas, and (2) consent order expressly providing band the right to fish in its traditional fishing grounds to protect its rights under the treaties was binding on the municipalities.


Loveness v. Arizona Dept. Of Revenue, Docket No. 98-1034

SUBJECTS: State taxation - income tax
ISSUES: 1. Did Cotton Petroleum Corp. v. New Mexico overrule White Mountain Apache Tribe v. Bracker, which found federal Indian timber laws to preempt state gross income and excise taxes on non-Indian loggers for tribal timber enterprises?
2. Does off-reservation domicile of non-Indian logger, which did not prevent federal preemption of state gross income taxes in Bracker, defeat preemption of net income taxes on same logger under same federal regulatory scheme?
HISTORY: Petition for certiorari filed December 22, 1998. Petition for certiorari denied March 1, 1999.
HOLDING BELOW: 192 Ariz. 224, 963 P.2d 303Court of Appeals held that: (1) federal regulation of logging activities on Indian reservations did not preempt state taxation of the taxpayer's individual income, and (2) right of Indians to make their own laws and be ruled by them was not infringed by state's imposition of income taxes on the taxpayers.


Maricopa-Stanfield Irrigation and Drainage District v. United States, Docket No. 98-1115

SUBJECTS: "Unmistakeability doctrine," Water rights, Powers of Secretary of Interior
ISSUES:
1. When Secretary of Interior allocates Colorado River water from CAP to individual Indian Tribes, municipal and industrial users, and non-Indian agricultural users, in that order or priority, and contracts with non-Indian agricultural users for specified percentages of total supply remaining after senior allocations have been satisfied:
a.) may Secretary subsequently increase allocation to Indian user, thereby reducing water available under junior users' contracts, without liability to those users, and
b.) may Secretary do so without liability if reallocation is directed by Congress at Secretary's request?
2. Does contract clause providing that U.S. "assumes no responsibility with respect to the quantity of water available for deliver" excuse government from liability when government determines to reallocate water to another user?
3. Does water allocated "to the Central Arizona Project" in statutory settlement of non-Indian CAP users' claims against U.S. inure to benefit of non-Indian users under Secretary's CAP allocations and implementing contracts?
4. Is Ninth Circuit's application of "unmistakeability doctrine" to absolve government from liability when Congress reallocates previously contracted-for water to another user consistent with United States v. Winstar Corp., 518 U.S. 839 (1996)?
HISTORY: Petition for certiorari filed January 12, 1999. Petition for certiorari denied May 24, 1999.
HOLDING BELOW: 158 F.3d 428Court of Appeals held that: (1) districts had standing, but (2) districts did not have any property right in excess water under Ak-Chin Settlement Act, so government's reallocation of excess water under San Carlos Apache Tribe Water Rights Settlement Act (SCAT Act) did not result in taking without just compensation.


Menominee Indian Tribe of Wisconsin v. Thompson, Docket No. 98-1306
SUBJECTS: Treaties - interpretation
ISSUES: 1. Because dismissal of case was based on the clear and unambiguous language of Tribe's treaties at issue, the Tribe's claims of hunting an fishing right on off-reservation lands were properly dismissed.
2. Tribe's contention that court considered external materials to the pleading in deciding motion to dismiss, thus converting motion to dismiss into motion for summary judgment in violation of Fed. R. Civ. P. 12(c), without allowing Tribe to present additional evidence, is without merit.
HISTORY: Petition for certiorari filed February 16, 1999 Petition for certiorari denied April 19, 1999.
HOLDING BELOW: /TD 161 F.3d 449The Court of Appeals held that: (1) Tribe was not judicially estopped from asserting its claim; (2) District Court could consider treaties and historical documents without converting motion to dismiss into motion for summary judgment; (3) Tribe was not entitled to off-reservation sturgeon fishing rights; and (4) Tribe did not retain continuing right to fish in Lake Winnebago, Lake Michigan, and Wisconsin River based on aboriginal possession.


Native Village of Eyak v. Daley, Docket No. 98-1437

SUBJECTS: "Federal paramountcy doctrine," Hunting and fishing rights, Aboriginal title
ISSUE: Does "federal paramountcy doctrine" bar Alaska Native Tribes from holding aboriginal title to their hunting and fishing grounds on Outer Continental Shelf (OCS) even though Congress, which has sole power to extinguish aboriginal title, has expressly preserved such rights in every major piece of legislation applicable to OCS?
HISTORY: Petition for certiorari filed March 8, 1999. Petition for certiorari denied June 14, 1999.
HOLDING BELOW: 154 F.3d 1090 Court of Appeals held that, as a matter of first impression, villages' claims of aboriginal title were barred under federal paramountcy doctrine.


Puget Sound Shellfish Growers v. United States, Docket No. 98-1028

(One of four petitions for certiorari filed appealing decision in case below United States v. Washington, 157 F.3d 630 (9th Cir. 1998).
SUBJECTS: Hunting and fishing rights, Treaties - interpretation, Equal footing doctrine
ISSUES: 1. Did Ninth Circuit err in holding, in conflict with decisions of other circuits and this court, that district court's ruling on intended meaning of treaty language is question of fact reviewed for clear error?
2. Did Ninth Circuit err in holding that equal footing doctrine had no application to tribes' claim that they received easements in millions of acres of land under Puget Sound's navigable waters, when other circuits and this court have held that equal footing doctrine obligates court to apply strong presumption that United States did not make pre-statehood grant of rights in such lands in derogation of future state's sovereignty?
3. Should this court decide open and important question and apply equitable doctrine of laches, as suggested by four justices in County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985), in case in which tribes delayed 135 years before claiming treaty right to enter and take shellfish from privately owned shellfish farms?
HISTORY: Petition for certiorari filed December 22, 1998.
Petition for certiorari denied April 5, 1999.
HOLDING BELOW: 157 F.3d 630
See Alexander v. United States, Docket No. 98-1052 (in this document).


Santee Sioux Tribe of Nebraska v. United States, Docket No. 97-1839

SUBJECT: Indian Gaming Regulatory Act
ISSUES: 1. Do scope of IGRA gaming provisions incorporate entire corpus of state law and regulations for purposes of tribal-state compact negotiations?
2. Are Class III gaming provisions of IGRA valid in light of holding in Seminole Tribe of Florida v. Florida, that compact enforcement provision of IGRA is unconstitutional?
HISTORY: Petition for certiorari filed May 14, 1998.
Petition for certiorari denied October 5, 1998.
HOLDING BELOW: 135 F.3d 558
Court of Appeals held that: (1) Attorney General was empowered to seek enforcement of Chairman's closure order; (2) video poker, blackjack, and slot machines operated by Tribe were illegal under Nebraska law, and thus under Indian Gaming Regulatory Act (IGRA); (3) injunctive relief was available under Nebraska law, and thus under IGRA, to effectuate closure of gambling establishments determined to be public nuisances; and (4) Tribe's continuation of illegal gambling activity was continuing and flagrant violation of law subject to injunctive relief.


Stoner v. United States, Docket No. 98-68

SUBJECTS: Statutory interpretation, limitation of action
ISSUES: For statute of limitations purposes, must indictment charging conspiracy under 18 U.S.C. Section 371 allege at least once specific overt act occurring within limitations period established by 18 U.S.C. Section 3282?
HISTORY: Petition for certiorari filed July 6, 1998.
Petition for certiorari denied November 2, 1998.
CASE BELOW: 139 F.3d 1343


Thompson v. Mille Lacs Band of Chippewa Indians, Docket No. 97-1357

SUBJECTS: Hunting and fishing rights, Treaties - interpretation, Equal footing doctrine
ISSUES: Prior ICC litigation that money paid for ceded territory by the 1837 Treaty was grossly inadequate did not collaterally estop this declaratory judgment to protect hunting and fishing rights, which were neither litigated nor necessary to outcome of the ICC litigation. Equal footing doctrine does not require conclusion that Indians' 1837 Treaty rights to hunt and fish were extinguished. Claim that Nelson Act established state regulation over Indian hunting and gaming rights is without merit.
HISTORY: Petition for certiorari filed February 17, 1998 Petition for certiorari denied April 5, 1999.
HOLDING BELOW: 124 F.3d 904
The Court of Appeals held that: (1) action was not barred by Eleventh Amendment; (2) tribe's right to hunt, fish, and gather on lands previously ceded to United States was not extinguished by 1850 Executive Order; (3) rights were not extinguished by subsequent treaty; (4) claims were not barred by res judicata; (5) tribe's rights were not extinguished by equal footing doctrine when Minnesota was admitted to union; (6) moderate living doctrine did not require allocation of resources; (7) private lands on which members of Indian tribe could exercise their treaty rights to hunt, fish and gather did not include private land to which owner consent to hunt and fish was necessary.


26 Tideland and Upland Private Property Owners v. United States, Docket No. 98-1039

(One of four petitions for certiorari filed appealing decision in case below United States v. Washington, 157 F.3d 630 (9th Cir. 1998).
SUBJECTS: Hunting and fishing rights, Treaties - interpretation, Equal footing doctrine
ISSUES: 1. Does treaty "right of taking fish ... in common with all citizens" interpreted in Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n allow Indians to enter privately owned tidelands and take 50 percent of shellfish that are owners' property?
2. May circuit court decline to apply this court's "central principle" that treaties secure "no more than is necessary to provide the Indians with a livelihood - that is to say, a moderate living" and allow half of shellfish from private lands to be taken by Indian tribes even though each tribe has exceeded that level as consequence of casino gambling and other income?
3. Should treaty harvest be taken from publicly owned tidelands, which make up nearly half of case area tidelands, and not from private lands?
HISTORY: Petition for certiorari filed December 22, 1998. Petition for certiorari denied April 5, 1999.
HOLDING BELOW: 157 F.3d 630
See Alexander v. United States, Docket No. 98-1052 (in this document).


Von Murdock v. United States, Docket No. 97-1575

SUBJECTS: Ute Termination Act, equal protection, hunting and fishing rights
ISSUES: In contravention of this court's precedent and in conflict with another circuit court of appals, did Tenth Circuit err in holding that "Indian termination legislation," now largely repealed, may nevertheless be read to dismember Indian Tribe and deprive tribal descendants of ancestral treaty rights in violation of their rights of association and equal protection?
HISTORY: Petition for certiorari filed March 23, 1998.
Petition for certiorari denied October 5, 1998.
HOLDING BELOW: 132 F.3d 534
Court of Appeals held that (1) defendant was not a tribal member entitled to hunt and fish on tribal land; (2) defendant did not have hunting and fishing rights by virtue of alleged membership in Uintah Band, which was one of the Bands that formed the Ute Tribe; (3) Ute Termination Act was not racially discriminatory; (4) defendant lacked standing to challenge Act's notice provisions; and (5) Act did not violate First Amendment.


Washington v. United States, Docket No. 98-1026

(One of four petitions for certiorari filed appealing decision in case below United States v. Washington, 157 F.3d 630 (9th Cir. 1998)).
SUBJECTS: Hunting and fishing rights, Treaties - interpretation, Equal footing doctrine
ISSUES: 1. Is there treaty right to take half of off-reservation natural resource, such as deep water shellfish, when Indians did not take that resource at treaty time and when there was no historic dependence on that resource that would support equitable allocation?
2. Consistent with treaty prohibition against taking shellfish from any beds staked or cultivated and state's equal footing title and powers, do tribes have any right to take shellfish from private tidelands or cultivated tidelands?
HISTORY: Petition for certiorari filed December 22, 1998. Petition for certiorari denied April 5, 1999.
HOLDING BELOW: 157 F.3d 630
See Alexander v. United States, Docket No. 98-1052 (in this document).



Compiled by David Selden, National Indian Law Library.
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Date Last Modified: 12 August 1999
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