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Tribal Supreme Court Project Case Update The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the Tribal Supreme Court Project website. On Monday, September 26, 2011, the Justices returned and the U.S. Supreme Court held its first Conference for the October Term 2011, selecting cases for review off of the summer lists which included five Indian law petitions. The Tribal Supreme Court Project is anticipating an extremely busy OT 2011 with 11 petitions having been filed in Indian law cases before the start of the term, and a number of important Indian law cases moving forward in the lower federal and state courts. The major Indian law case considered by the Court during its first Conference involves two petitions: a petition filed by the United States in United States v. New York (No. 10-1404); and a petition filed by the Oneida Indian Nation of New York, the Oneida Tribe of Indians of Wisconsin and the Oneida of the Thames in Oneida Indian Nation v. County of Oneida (No. 10-1420). Both petitions seek review of a split panel decision (2-1) of the U.S. Court of Appeals for the Second Circuit which affirmed the district court's dismissal of the possessory land claims (e.g. trespass damages) based on "equitable considerations" (i.e. the indisputably disruptive nature of the claims) discussed in its decision in Cayuga Indian Nation v. Pataki and the Supreme Court's decision in City of Sherrill v. Oneida Indian Nation. The Second Circuit reversed the district court to hold that the Oneida tribes are also barred by these "equitable considerations" from pursuing their non-possessory claims for fair compensation based on the State's payment to the Oneidas of far less than the true value of the land. In dissent, Judge Gershon found that the Oneida tribes and the United States are not foreclosed from pursuing their non-possessory claims. In particular he opined that the United States should be allowed to pursue its claim against the State for violation of the Non-intercourse Act. The Tribal Supreme Court Project assisted the Oneida tribes in coordinating the amicus strategy, and NARF prepared an amicus brief on behalf of NCAI in support of the petitions. At present, the Court has not taken any action on the petitions, having re-distributed the petitions for conference on October 7, 2011. However, the petitions are not listed in the Order List issued October 11, 2011. To grant review, four justices must vote in favor of the grant. Although it is not known for certain, Justice Sotomayor, as a former judge on the Second Circuit, and Justice Kagan, as the former Solicitor General for the United States, may both have recused themselves from considering these petitions. Thus, it would be highly unlikely that there are the necessary four votes among the remaining Justices and the Chief Justice. Although it is pure speculation, Justice Ginsberg (possibly joined by Justice Breyer) possibly is writing a dissent to a denial of the writ of certiorari, perhaps to clarify what the Court did (and did not do) in the City of Sherrill case. Although it is extremely rare, another possibility is a summary reversal of the Second Circuit by the Supreme Court. The Court denied review in the other Indian law petitions considered during the first Conference. In Navajo Nation v. Equal Employment Opportunity Commission (Nos. 10-981, 10-986 and 10-1080), the Navajo Nation and Peabody Coal both sought review of a decision by the U.S. Court of Appeals for the Ninth Circuit which involved "complex compulsory party joinder issues" in longstanding litigation brought by the EEOC over the application of Title VII of the Civil Rights Act to the Navajo preference for employment provisions in leases between Peabody Coal and the Navajo Nation as approved by the Secretary of the Interior. In Reed v. Gutierrez (No. 10-1390), the Court denied review of a decision by the Supreme Court of New Mexico which held that the Pueblo of Santa Clara and its employees are entitled to sovereign immunity from suit for injuries sustained in a car accident that occurred outside the reservation. Challenges to the doctrine of tribal sovereign immunity remain one of the primary focal points for the work of the Tribal Supreme Court Project. As many as 6 and 8 petitions have been filed in a single term seeking review of lower court decisions affirming tribal sovereign immunity in congruence with the Supreme Court's 1998 decision in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc. Cases Recently Decided by the Supreme Court Currently, no Indian law or Indian law-related cases have been heard and decided by the Court for the October Term 2011 Petitions for Writ of Certiorari Granted Currently, no petitions for a writ of certiorari have been granted in an Indian law or Indian law-related cases for the October Term 2011. Petitions for a Writ of Certiorari Pending Currently, several petitions for a writ of certiorari have been filed and are pending before the Court in the following Indian law and Indian law-related cases: Corboy v. Louie (No. 11-336) On September 15, 2011, non-native individual landowners and taxpayers filed a petition seeking review of a decision by the Supreme Court of Hawaii which held that they do not have standing to challenge the state and county tax law exemption granted to Hawaiian homestead lessees under the Hawaiian Homes Commission Act. The state's brief in opposition is due on October 17, 2011. Salazar v. Patchak (No. 11-247) On August 25, 2011, the United States filed a petition seeking review of the decision by the U.S. Court of Appeals for the District of Columbia in Patchak v. Salazar which reversed the district court and held that: (1) Mr. Patchak, an individual non-Indian landowner, is within the "zone of interests" protected by the Indian Reorganization Act and thus has standing to bring a Carcieri challenge to a land-in-trust acquisition; and (2) Mr. Patchak's Carcieri challenge is a claim brought pursuant to the Administrative Procedures Act (APA), not a case asserting a claim to title under the Quiet Title Act (QTA), and is therefore not barred by the Indian lands exception to the waiver of immunity under the QTA. The D.C. Circuit acknowledged that its holding on the QTA issue is in conflict with the Ninth, Tenth and Eleventh Circuits which have all held that the QTA bars all "suits seeking to divest the United States of its title to land held for the benefit of an Indian tribe,' whether or not the plaintiff asserts any claim to title in the land." The United States framed two questions presented: 1. Whether 5 U.S.C. 702 [of the APA] waives the sovereign immunity of the United States from a suit challenging its title to lands that it holds in trust for an Indian tribe. The brief in opposition is due on October 26, 2011. Match-E-Be-Nash-She-Wish Band of Potawatomi Indians v. Patchak (No. 11-246) On August 25, 2011, the Gun Lake Tribe also filed a petition seeking review of the decision by the U.S. Court of Appeals for the District of Columbia in Patchak v. Salazar referenced above. The Tribe framed two questions presented: 1. Whether the Quiet Title Act and its reservation of the United States' sovereign immunity in suits involving "trust or restricted Indian lands" apply to all suits concerning land in which the United States "claims an interest," 28 U.S.C. 2409a(a), as the Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether they apply only when the plaintiff claims title to the land, as the D.C. Circuit held. The brief in opposition is due on October 26, 2011. Evans v. Wapato Heritage, LLC (No. 11-215) On August 15, 2011, an individual heir to an Indian trust allotment filed a petition seeking review of an unpublished opinion of the U.S. Court of Appeals for the Ninth Circuit which held in favor of the other heirs in a dispute regarding the enforcement of a Settlement Agreement previously reached by the heirs. The primary question raised in the petition is whether the federal courts have subject matter jurisdiction over what the dissent calls " a garden-variety state law contract claim that simply does not arise under' federal law for the purposes of establishing federal question jurisdiction under 28 U.S.C. 1331." The brief in opposition is due on October 24, 2011. Seneca Telephone Company v. Miami Tribe of Oklahoma (No. 11-183) On August 10, 2011, Seneca Telephone Company filed a petition seeking review of a decision of the Supreme Court of the State of Oklahoma which reversed the lower courts and held that the Tribe's sovereign immunity has not been waived by Congress, or the Tribe. In its tort action against the tribally owned construction company for damages to its underground lines during excavation work, the Seneca Telephone Company argued that the court should follow the preemption analysis of Rice v. Rehner and find that the state's adoption of the Underground Facilities Damage Prevention Act, in accordance with Congress' authorization, preempts tribal sovereign immunity in the area of telecommunications. The court found that Rice v. Rehner was not applicable since the Tribe was not engaged in any telecommunications activity. The Tribe's brief in opposition was filed on September 12, 2011, and the petition has been scheduled for conference on October 14, 2011. Arctic Slope Native Association v. Sebelius (No. 11-83) On July 18, 2011, the Arctic Slope Native Association, a non-profit corporation which contracts with the federal government to operate an IHS hospital in Barrow, Alaska, filed a petition seeking review of the decision of the U.S. Court of Appeals for the Federal Circuit which held that the U.S. Department of Health and Human Services is not liable for its failure to pay full contract support costs based on the "subject to availability of appropriations" provision under the Indian Self-Determination Act. The question presented is: "Whether the Federal Circuit erred in holding, in direct conflict with the Tenth Circuit, that a government contractor which has fully performed its end of the bargain has no remedy when a government agency over commits itself to other projects and, as a result, does not have enough money left in its annual appropriation to pay the contractor." The U.S. brief in opposition is due on October 19, 2011. Gila River Indian Community v. Lyon (No 11-80) On July 15, 2011, the Gila River Indian Community filed a petition seeking review of a decision by the U.S. Court of Appeals for the Ninth Circuit which held that the United States is not a necessary and indispensable party to a dispute between an Indian tribe and the trustee of a bankruptcy estate over the rights of access to a parcel of non-Indian fee land completely surrounded by tribal trust and individual Indian trust lands. The questions presented are: (1) "Whether, under Federal Rule of Civil Procedure 19(b), courts may adjudicate and compromise legal rights in land to which the United States holds title without the United States' participation in the litigation; and (2) Whether, in light of this Court's recent decision in United States v. Jicarilla Apache Nation, No. 10-382 (June 13, 2011), the Ninth Circuit properly held, as a matter of law, that litigation compromising the United States' title in land can proceed in the United States' absence as long as an Indian tribe is a party to the litigation." The U.S. brief in opposition is due on September 19, 2011. You can find copies of briefs and opinions on the major cases we track on the Tribal Supreme Court Project website. Articles and Materials
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