Home

Indian Law Bulletins  |  U.S. Supreme Court  | 1997-1998 Term

A service of the National Indian Law Library of the Native American Rights Fund


A note about links used in this document

Text highlighted in blue are links to information available on the Internet free of charge. Text highlighted in green are links to information available on Westlaw, for the convenience of those who have a Westlaw account. Please contact the National Indian Law Library if you need help obtaining legal documents.The National Indian Law Library and Native American Rights Fund are not affiliated with Westlaw. See www.westlaw.com for more information about the Westlaw legal databases.

* Issues and holdings are provided under an agreement BNA, Inc. www.bna.com


1997 - 1998 U.S. Supreme Court Term

Please alert us to any cases we may have missed from the US Supreme Court.


See Cases by Status


Six Indian law-related cases were decided by the Supreme Court in the 1997-1998 term.

Alaska v. Native Village of Venetie Tribal Government
522 U.S. 520
Docket No. 96-1577

Subjects: United States. Alaska Native Claims Settlement Act; Indian Country (U.S.) -- Defined; Dependent Indian communities -- Defined; Native Village of Venetie Tribal Government (Arctic Village and Village of Venetie) -- Government relations -- United States.

*Issues: (1) Did Ninth Circuit correctly hold--in conflict with clear intent of Congress in enacting ANCSA, decisions of Alaska Supreme Court, and interpretation of federal agency charged with implementing ANCSA--that ANCSA land may constitute Indian country within Section 1151(b)? (2) If so, did Ninth Circuit correctly hold--in conflict with decisions of this court and other federal circuits--that determination whether land is Indian country within Section 1151(b) should depend upon ad hoc, six-part balancing test incapable of producing predictable results?

Holding: (from Westlaw) The Supreme Court, Justice Thomas, held that:
(1) term “dependent Indian communities,” as used in statute defining “Indian country,” refers to limited category of Indian lands that are neither reservations nor allotments, and that have been set aside by Federal Government for use of Indians as Indian land, and are under federal superintendence, and
(2) land transferred to private corporations consisting of Indian shareholders, in fee simple without restrictions, and subsequently reconveyed to tribe was not “Indian country,” and tribe consequently lacked authority to impose tax on business activities conducted on land.
Reversed.

History: Petition for Certiorari filed April 4, 1997. Petition for Certiorari granted June 23, 1997. Oral Argument on for December 10, 1997. Decision February 25, 1998.

*Holding below: State of Alaska ex rel. Yukon Flats School Dist. v. Native Village of Venetie Tribal Government, 101 F.3d 1286, 9th Cir. Test for determining whether Native American tribe constitutes ''dependent Indian community'' within meaning of 18 USC 1151(b), defining ''Indian country,'' requires showing of federal set aside and federal superintendence, such requirements to be construed broadly and informed by consideration of (1) nature of area; (2) relationship of area inhabitants to Indian tribes and federal government; (3) established practice of government agencies toward that area; (4) degree of federal ownership of and control over area; (5) degree of cohesiveness of area inhabitants; and (6) extent to which area was set aside for use, occupancy, and protection of dependent Indians; under that test, Alaska Native Claims Settlement Act neither eliminated federal set aside for Alaska Natives, as such, nor terminated federal superintendence over Alaska Natives, notwithstanding its transfer of title to settlement lands to Native corporations that were empowered to opt out of supervisory controls, and thus Indian country may still exist in Alaska; although Native Village of Venetie Tribal Government is no longer reservation owned or controlled by federal government, it meets all other factors above, in that Venetie has special use and occupancy relationship to its land, its inhabitants maintain significant contacts and relationships with numerous federal agencies, federal government continues to be involved in affairs of Natives, high degree of cohesiveness among its inhabitants indicates that Venetie is strong and distinct Native community, and reunification of Venetie with its former reservation land via statutory mechanism provided by Congress demonstrates that land has been set aside for Indians, as such; accordingly, Venetie is dependent Indian community whose territory qualifies as Indian country.

Cass County, Minn. v. Leech Lake Band of Chippewa Indians
524 U.S. 103
Docket No. 97-174

Subjects: United States. General Allotment Act (1887); Real property tax -- Minnesota; Real property tax -- Cass County (Minn.); Real property -- Leech Lake Band of Chippewa Indians; Indian land transfers -- Leech Lake Band of Chippewa Indians; Ad valorem tax -- Minnesota; Ad valorem tax -- Cass County (Minn.).

*Issues: Under Yakima County v. Yakima Indian Nation, is land originally patented by U.S. government, and subsequently reacquired in fee simple by Indian band, subject to state and local government taxation if it remains freely alienable, irrespective of statute or treaty under which it was originally conveyed?

Holding: (from Westlaw) The Supreme Court, Justice Thomas, held that when Congress makes Indian reservation land freely alienable, it manifests an unmistakably clear intent to render the land subject to state and local taxation, and the repurchase of the land by an Indian tribe does not cause the land to reassume tax-exempt status.
Judgment reversed.

History: Petition for Certiorari filed July 8, 1997. Petition for Certiorari granted October 31, 1997. Decision June 8, 1998.

*Holding below: Leech Lake Band of Chippewa Indians v. Cass County, Minn., 108 F.3d 820, 8th Cir. Sections 4, 5, and 6 of 1889 Nelson Act, pursuant to which eight lots of Indian reservation land were sold as pine lands or distributed as homestead lands, do not evince unmistakably clear intent, required under Yakima County v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992), to allow state ad valorem taxes on such land following its reacquisition by Indian tribe in fee, and thus Indian tribe enjoys immunity from county ad valorem taxes on such reacquired land; Section 3 of Nelson Act, which allotted certain land on reservation by incorporating mechanisms of General Allotment Act at issue in Yakima, evinced unmistakably clear intent required by Yakima to allow state ad valorem taxes on lands patented in fee after enactment of Burke Act proviso in 1906 (which amended GAA to make clear that allottees would be subject to state law only after expiration of trust period and issuance of patent in fee simple), but not if patented before 1906, and thus Section 3 land that was patented after 1906 and later reacquired by tribe is taxable.

Idaho v. Coeur dAlene Tribe of Idaho
521 U.S. 261
Docket No. 94-1474

Subjects: Water rights -- Coeur D'Alene Reservation, Idaho -- Coeur d'Alene Lake (Idaho); Submerged lands -- Coeur d'Alene Lake (Idaho); Navigable waters -- Coeur d'Alene Lake (Idaho); Indian title -- Coeur D'Alene Reservation, Idaho; Quiet title actions -- Coeur D'Alene Reservation, Idaho; Equal footing doctrine; United States. Constitution. 11th Amendment; Conveyancing; United States. President -- Powers and duties.

*Issues: (1) May federal court hear action against state officers for injunctive and declaratory relief when such relief requires adjudication of states title and will deprive state of all practical benefits of ownership of disputed waters and submerged lands? (2) Can president, acting without express congressional authority, convey title of beds and banks of navigable waters to Indian tribe, thereby defeating states entitlement to such lands under equal footing doctrine of Constitution?

Holding: (from Westlaw) Certiorari was granted, and the Supreme Court, Justice Kennedy, held that action, which was functional equivalent of quiet title action, did not come within doctrine of Ex parte Young and was barred by Eleventh Amendment.
Reversed and remanded.

History: Petition for certiorari filed April 3, 1996. Petition granted April 15, 1996. Oral argument October 16, 1996. Decision June 23, 1997.

*Holding below: Coeur d'Alene Tribe of Idaho v. State of Idaho, 42 F.3d 1244, 9th Cir. Indian tribe´s action against state, state agencies, and state officials for quiet title to all beds, banks, and waters of navigable waterways within its reservation, as well as tribe´s claims for injunctive and declaratory relief against state and state agencies only, are barred by Eleventh Amendment; however, to extent that claims for injunctive and declaratory relief against state officials seek only to preclude officials´ future violations of federal law, they are not barred by Eleventh Amendment even if relief ordered by court puts plaintiff in possession of property also claimed by state; because tribe has arguable claim to ownership of property at issue, based on 1873 executive order, district court´s dismissal of tribe´s complaint for failure to state claim is reversed; state´s contention that president may not convey title to submerged lands by executive order without express congressional authorization is rejected.

Kiowa Tribe of Oklahoma v. Manufacturing Technologies Inc.
523 U.S. 751
Docket No. 96-1037

Subjects: Promissory notes; Business enterprises -- Off Indian reservations -- Oklahoma; Sovereign immunity -- Kiowa Indian Tribe of Oklahoma; Jurisdiction -- Oklahoma; Debtor and creditor -- Oklahoma; United States. Indian commerce clause.

*Issues: (1) Under Indian Commerce Clause, is federally recognized Indian tribe that has not waived its sovereign immunity subject to ''inherent jurisdiction'' of state court because commerce from which suit arises took place, in part, outside tribal territory? (2) Under Indian Commerce Clause and Treaty Clause, can state jurisdiction over Indian tribes be limited solely by explicit ''ouster'' of that jurisdiction by Congress?

Holding: (from Westlaw) Following grant of certiorari, the Supreme Court, Justice Kennedy, held that tribe was entitled to sovereign immunity from suit on promissory note which it had signed, regardless of whether note was signed on or off the reservation, and notwithstanding that note allegedly related to its commercial activities.
Reversed.

History: Petition for Certiorari filed December 23, 1996. Petition for Certiorari granted June 27, 1997. Oral argument February 23, 1998. Decision May 26, 1998.

*Holding below: (Okla CtCivApp DivI, 6/28/96, unpublished) State court has jurisdiction over lawsuit, filed against federally recognized Indian tribe to collect on delinquent promissory note, that has not been expressly prohibited by Congress and that does not infringe on tribal self-government.

Montana v. Crow Tribe of Indians
523 U.S. 696
Docket No. 96-1829

Subjects: Taxation -- Law and legislation -- Montana; Taxation -- Law and legislation -- Crow Tribe of Montana; Mining leases -- Crow Tribe of Montana; Coal -- Taxation -- Montana; Big Horn County (Mont.).

*Issues: May Indian tribe, or United States on tribe's behalf, recover in quasi-contract from state and county taxes paid pursuant to state law by third-party taxpayer that has waived any entitlement to refund?

Holding: (from Westlaw) The Supreme Court, Justice Ginsburg, held that the tribe was not entitled to disgorgement of taxes improperly assessed against mineral lessee.
Reversed and remanded.

History: Petitition for Certiorari filed May 16, 1997. Petition for Certiorari granted October 14, 1997. Oral Argument February 24, 1998. Decision May 18, 1998.

*Holding below: Crow Tribe of Indians v. State of Mont., 98 F.3d 1194, 9th Cir. District court's ruling that, even though state and county taxes had been imposed illegally on coal mined on Indian land by company leasing rights from tribe, tribe and lessee lacked privity and therefore tribe was not entitled to restitution from state on theories of assumpsit or constructive trust, as well as its ruling that state did not act with wrongful intent, its minimalization of tribe's interest in raising revenue from its mineral resources, and its consideration of fact that tribe did not show it would have collected taxes from lessee if state had not taxed coal, were contrary to law of case established in three prior appeals, and case is therefore remanded for entry of order directing state and county to disgorge improperly collected taxes.

South Dakota v. Yankton Sioux Tribe
522 U.S. 329
Docket No. 96-1581

Subjects: Fills (Earthwork) -- On Indian reservations -- Yankton Sioux Tribe of South Dakota -- Tribal supervision; Indian allotments -- Yankton Sioux Tribe of South Dakota; United States. General Allotment Act (1887); Indian Country (U.S.) -- Defined; Diminished Indian reservations -- Yankton Sioux Tribe of South Dakota; Conveyancing; Disestablished Indian reservations -- Yankton Sioux Tribe of South Dakota; Boundaries -- Yankton Sioux Tribe of South Dakota -- Defined.

*Issues: Has Yankton Sioux reservation been disestablished or diminished by virtue of 1894 act adopting ''cession and sum certain'' agreement between Yankton Sioux Tribe and United States and by virtue of its century long treatment as disestablished or diminished?

Holding: (from Westlaw) On certiorari, the Supreme Court, Justice O'Connor, held that land surplus act which ratified agreement pursuant to which unallotted reservation lands that were opened for settlement by non-Indians were ceded to the United States in return for payment of sum certain did not preserve opened tracts' reservation status, but resulted in diminishment of reservation, such that the State of South Dakota ultimately acquired primary jurisdiction over tracts in question, and waste site constructed on such nonreservation land was subject to environmental laws of South Dakota.
Reversed and remanded.

History: Petition for Certiorari filed April 7, 1997. Petition for Certiorari granted June 9, 1997. Argument set for December 8, 1997. Decision January 26, 1998.

*Holding below: Yankton Sioux Tribe v. Southern Missouri Waste Management District, 99 F.3d 1439, 8th Cir. Court affirms district court's ruling that landfill site over which state claims jurisdiction is, though owned by non-Indian, still part of Yankton Sioux reservation, so that federal environmental laws apply, but that tribe, which did not establish exception to general rule that Indian tribes cannot regulate activities of non-Indians, even on reservation, does not have regulatory authority over landfill project or authority to approve it; state's claim to jurisdiction over site on basis that reservation, which had been established by 1858 treaty, had been disestablished or diminished by 1894 statute that incorporated 1892 agreement between tribe and United States under which federal government bought 200,000 acres of unallotted land within reservation for sale to non-Indian settlers, is rejected; neither 1894 statute nor its legislative history indicates that Congress intended that boundaries established by 1858 treaty be disestablished or diminished, and facts that area did not lose its ''Indian character'' and that Indian population and influence in area are increasing defeat argument that ''de facto'' diminishment took place, even in absence of congressional intent.

Back to Top


Petition for Certiorari was granted in three Indian law-related cases this term. These cases were carried over into the 1998-1999 term.

Ariz. Dept. of Revenue v. Blaze Construction Co.
Docket No. 97-1536

Subjects: Contractors -- United States -- On Indian reservations -- Taxation -- Arizona; United States. Bureau of Indian Affairs; Roads -- Design and construction -- On Indian reservations -- Arizona; Preemption of state law -- Arizona; United States. Federal Lands Highway Program; Blaze Construction Co.

*Issues: 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.

*Holding below: State ex rel. Arizona Dept. of Revenue v. Blaze Const. Co., Inc., 947 P.2d 836, 9th Cir. Arizona's assessment of transaction privilege (contracting) taxes against construction company's gross proceeds from building federally funded roads for U.S. Bureau of Indian Affairs on Indian reservations within Arizona, which provided no regulatory or other services related to improving, maintaining, or using any such reservation roads, interferes with on-reservation road building and improvement activities that are governed by comprehensive federal regulations and is thus impliedly preempted by federal law, notwithstanding state's contention that Indian law preemption analysis does not apply because contracts were let by BIA rather than by tribes and because Congress has neither expressly nor impliedly indicated intent to preempt state taxation of federal contractors on Indian reservations.

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

Subjects: Hunting rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Fishing rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Treaty rights -- Mille Lacs Band of Chippewa Indians -- Abrogation; Equal footing doctrine; Minnesota.

*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 United States ''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.

*Holding below: Minnesota et al. v. Mille Lacs Band of Chippewa Indians et al., 124 F.3d 904, 8th Cir. 1850 executive order that (i) explicitly revoked rights conferred on Indian bands by 1837 treaty to hunt and fish ''during the pleasure of the President'' on land ceded by Indians to United States and (ii) required removal of Indians remaining on ceded lands was ineffectual to revoke rights to hunt and fish because order's removal provision, from which provision revoking rights to hunt and fish is not severable, did not comply with congressional requirements and was thus unauthorized; nor were 1837 treaty rights to hunt and fish revoked by 1855 treaty that established reservation within land ceded by 1837 treaty and, without mentioning hunting and fishing rights, conveyed to United States ''all right, title, and interest . . . in and to any other lands,'' because neither Indians nor United States intended to revoke such rights in 1855 treaty; different ruling is not mandated by Oregon Dept. of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985), in which hunting and fishing rights were exclusive, on-reservation rights that were held to be extinguished on that part of reservation that was relinquished by later treaty; equal footing doctrine, which requires that all states admitted to union after original 13 states be admitted with same rights and sovereignty as original states, does not require conclusion that Indians' 1837 treaty rights to hunt and fish were extinguished by congressional silence regarding such rights upon Minnesota's admission in 1858.

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

Subjects: Hunting rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Fishing rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Treaty rights -- Mille Lacs Band of Chippewa Indians -- Abrogation; Equal footing doctrine; Minnesota; Treaties -- Interpretation and construction; Jurisdiction -- Minnesota.

*Issues: (1) Was ''privilege of hunting, fishing, and gathering the wild rice upon the lands, the rivers and the lakes included in the ceded territory . . . during the pleasure of the President'' contained in 1837 treaty with Chippewa Indians revoked by executive actions, including 1850 presidential order that states that ''the privileges granted temporarily to the Chippewa Indians, by the Fifth Article of the Treaty . . . of July 1837 . . . are hereby revoked''? (2) Was privilege relinquished by 1855 treaty, when Chippewa agreed to ''relinquish and convey to United States any and all right, title, or interest . . . in, and to any other lands in the territory of Minnesota or elsewhere''? (3) Were Chippewa subject to state regulation for all off-reservation hunting and fishing activities by virtue of Nelson Act, 25 Stat. 642 (1889), and General Allotment Act, 24 Stat. 388 (1887)? (4) Is lower courts' characterization of privilege as immunity from state regulation rather than revocable license or other interest ''in or to land'' contrary to Oregon Department of Fish & Wildlife v. Klamath Indian Tribe, 473 U.S. 753 (1985)? (5) Does lower courts' determination that privilege operates as immunity from state regulation unconstitutionally usurp state police powers in conflict with principles of federalism embodied in Tenth Amendment and equal footing doctrine? (6) Is present litigation against state barred by Indian Claims Commission Act, which provided for exclusive forum and statute of limitations, and under which monetary award was granted to Chippewa for claims under 1837 treaty?

History: Petition for Certiorari filed February 17, 1998. Petition for Certiorari granted June 8, 1998 by Minnesota v. Mille Lacs Band of Chippewa Indians, Docket No. 97-1337.

*Holding below: Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 8th Cir. 1850 executive order that (i) explicitly revoked rights conferred on Indian bands by 1837 treaty to hunt and fish ''during the pleasure of the President'' on land ceded by Indians to United States and (ii) required removal of Indians remaining on ceded lands was ineffectual to revoke rights to hunt and fish because order's removal provision, from which provision revoking rights to hunt and fish is not severable, did not comply with congressional requirements and was thus unauthorized; nor were 1837 treaty rights to hunt and fish revoked by 1855 treaty that established reservation within land ceded by 1837 treaty and, without mentioning hunting and fishing rights, conveyed to United States ''all right, title, and interest . . . in and to any other lands,'' because neither Indians nor United States intended to revoke such rights in 1855 treaty; prior litigation before Indian Claims Commission that awarded Indians over $9 million to satisfy their claim that amount originally paid by United States for land ceded in 1837 treaty was grossly inadequate did not collaterally estop this declaratory judgment action by Indians to protect hunting and fishing rights, which were neither litigated nor necessary to outcome of ICC litigation; contention that value of hunting and fishing rights, which were never mentioned in ICC litigation, was subsumed in ICC award, which was based on highest and best use of land, is meritless; equal footing doctrine, which requires that all states admitted to union after original 13 states be admitted with same rights and sovereignty as original states, does not require conclusion that Indians' 1837 treaty rights to hunt and fish were extinguished by congressional silence regarding such rights upon Minnesota's admission in 1858; claim that Nelson Act established state regulation over Indian hunting and fishing rights is without merit.

Back to Top


Petition for certiorari was pending in two Indian law-related cases. These cases were carried over into the 1998-1999 term.

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

Subjects: Hunting rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Fishing rights -- Mille Lacs Band of Chippewa Indians -- Extinguishment; Treaty rights -- Mille Lacs Band of Chippewa Indians -- Abrogation; Equal footing doctrine; Minnesota; Aitkin County (Minn.).

*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 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 February 17, 1998.

*Holding below: Mille Lacs Band of Chippewa Indians v. Minnesota, 124 F.3d 904, 8th Cir. 1850 executive order that (i) explicitly revoked rights conferred on Indian bands by 1837 treaty to hunt and fish ''during the pleasure of the President'' on land ceded by Indians to United States and (ii) required removal of Indians remaining on ceded lands was ineffectual to revoke rights to hunt and fish because order's removal provision, from which provision revoking rights to hunt and fish is not severable, did not comply with congressional requirements and was thus unauthorized; nor were 1837 treaty rights to hunt and fish revoked by 1855 treaty that established reservation within land ceded by 1837 treaty and, without mentioning hunting and fishing rights, conveyed to United States ''all right, title, and interest . . . in and to any other lands,'' because neither Indians nor United States intended to revoke such rights in 1855 treaty; moderate living doctrine of Washington v. Washington State Commercial Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979)--that certain treaty language entitling tribes to presumptive 50 percent share of harvestable fish established maximum that may be reduced if tribal needs may be satisfied by lesser amount, because treaty rights to natural resource secure so much as, but no more than, necessary to provide Indians with ''moderate living''--is inapplicable absent showing that any resource at issue is in ecological danger or that any non-treaty user's right to any resource has been harmed by another party's harvest of that resource; contention that moderate living doctrine establishes right to apportionment of resource whenever holders of treaty right have achieved moderate standard of living through any source or sources of income is without merit.

Michigan v. U.S.
Docket No. 97-14

Subjects: United States. General Allotment Act (1887); Real property tax -- Michigan; Real property -- Saginaw Chippewa Indian Tribe of Michigan; Indian land transfers -- Saginaw Chippewa Indian Tribe of Michigan; Ad valorem tax -- Michigan.

*Issues: May state continue to impose ad valorem property taxes upon parcel even though it was originally allotted under provisions of treaty rather than under General Allotment Act?

History: Petition for certiorari filed June 30, 1997.

*Holding below: U.S. on Behalf of Saginaw Chippewa Indian Tribe v. State of Mich., 106 F.3d 130, 6th Cir. Treaties under which United States conveyed to individual reservation Indians land that was alienable without any restrictions do not demonstrate, without more, ''unmistakably clear'' congressional intent to permit states to tax such land, and thus such land is not subject to ad valorem property taxes; although provisions of 1887 General Allotment Act make clear that land conveyed in fee simple under act is subject to ad valorem taxation, such provisions do not govern land grants that, as in this case, were not made pursuant to act or were made before it was enacted.

Back to Top


Petition for certiorari was denied in twenty-six Indian law-related cases this term.

Albuquerque, N.M. v. Browner
Docket No. 96-1587

Subjects: Water -- Pollution -- Law and legislation -- Pueblo of Isleta, New Mexico; Water quality -- Tribal supervision -- Pueblo of Isleta, New Mexico; Sewage disposal plants -- Albuquerque (N.M.); Rio Grande River (Tex.); United States. Environmental Protection Agency -- Powers and duties; United States. Constitution. Establishment clause; Freedom of religion -- Pueblo of Isleta, New Mexico.

*Issues: (1) Can EPA approve and enforce Indian pueblo water quality standards beyond pueblo boundaries when those standards have no scientific or rational basis? (2) Is EPA action that forces city of Albuquerque to spend taxpayer money to protect Indian pueblo religious uses of river water allowable under Establishment Clause? (3) Does EPA's unreasonable consequences resolution process comply with Clean Water Act mandate when it is not binding and denies standing to affected parties?

History: Petition for Certiorari filed April 7, 1997. Petition for Certiorari denied November 10, 1997.

*Holding below: City of Albuquerque v. Browner, 97 F.3d 415, 10th Cir. Environmental Protection Agency's interpretation of Clean Water Act provision that grants Indian tribes power to regulate water resources in same manner as states as authorizing adoption of water quality standards more stringent than those required by EPA and enforcement of such standards against upstream dischargers outside tribal boundaries is reasonable; EPA's approval of Indian pueblo's use of Rio Grande River for religious or traditional purposes as designated use of river within reservation boundaries does not violate Establishment Clause, because EPA's approval serves secular purpose of promoting goals of Clean Water Act, does not promote religion, and does not require any governmental involvement in tribe's religious practices; EPA's regulations for resolving unreasonable consequences arising from differing state and tribal water quality standards on common body of water, which prescribe mediation and non-binding arbitration and permit only states and Indian tribes to initiate such process, are consistent with Clean Water Act's requirement that EPA encourage cooperative activities among states and are entitled to deference.

Burlington Northern Railroad Co. v. Estate of Red Wolf
504 U.S. 648
Docket No. 96-1853

Subjects: Civil jurisdiction -- Crow Tribe of Montana; Burlington Northern Santa Fe Railroad; Railroad accidents -- On Indian reservations -- Crow Tribe of Montana; Liability for railroad accidents; Jurisdiction -- Crow Tribe of Montana; Jurisdiction -- United States; Wrongful death; Exhaustion of tribal remedies -- Crow Tribe of Montana.

*Issues: Did court of appeals err, in light of this court's recent decision in Strate v. A-1 Contractors, 520 U.S. 438 (April 28, 1997), in concluding that exhaustion of tribal court remedies is mandatory and that district court therefore had no discretion to issue preliminary injunction to protect Burlington Northern's interstate rail assets from being seized by Crow Tribal Court to satisfy $250 million personal injury award entered by that court?

History: Petition for Certiorari filed May 16, 1997. Summary action - Judgment vacated on October 6, 1997.

*Holding below: Burlington RR v. Red Wolf, 106 F.3d 868, 9th Cir. Federal district court erred in issuing preliminary injunction against execution or enforcement of $250 million tribal court wrongful death judgment against railroad before railroad had exhausted tribal court remedies or established that any exception to exhaustion requirement applied; futility exception, applicable when exhaustion would be futile because of lack of adequate opportunity to challenge court's jurisdiction, was inapplicable because judgment creditors agreed to condition supersedeas bond required by tribal court upon completion of all available federal review, and federal review of tribal court jurisdiction is assured.

Campbell v. Campbell
Docket No. 97-776

Subjects: Jurisdiction -- Minnesota; Divorce suits -- Minnesota; Child support -- Minnesota; Tribal members -- Minnesota; Non-Indians.

*Issues: (1) Should Minnesota district court retain jurisdiction over post-dissolution matters involving parent and children who are enrolled members of Indian tribe when one parent has legal domicile on Indian reservation and other parent now has legal domicile in state other than Minnesota? (2) Should person be held in contempt for his failure to obtain tribal court order for child support withholding when Minnesota district court entering order declines to allow tribal court itself to entertain matter or to follow tribal law and when spouse asking for contempt order has declined to request relief for herself in tribal court? (3) Does either comity or U.S. Supreme Court precedent oblige state court to allow tribal court to assert jurisdiction over family law matter when tribe has drafted family law code and established competent tribal court system since date of state court dissolution of marriage?

History: Petition for Certiorari filed November 3, 1997. Petition for Certiorari denied January 20, 1998.

*Holding below: (Minn CtApp, 6/3/97, unpublished) State court is not divested of jurisdiction to find former husband in contempt of its order that he increase child support that he pays to his ex-wife by (i) fact that dispute is between Indian (former husband) and non-Indian (former wife), (ii) former husband's relocation to reservation following divorce, or (iii) former wife's relocation to another state; district court did not err by ordering former husband to obtain tribal court order requiring child support payments to be automatically withheld from his income.

Centex Bateson Construction Co. v. N.M. Taxation and Revenue Dept.
Docket No. 97-99

Subjects: Contractors -- United States -- On Indian reservations -- Taxation -- New Mexico; United States. Dept. of Health and Human Services; Hospitals -- Design and construction -- On Indian reservations -- New Mexico; Preemption of state law -- New Mexico.

*Issues: Does federal Indian preemption analysis apply to state taxation of proceeds of contract between contractor and federal Indian agency for construction project on Indian reservation for exclusive benefit of members of federally recognized Indian tribes?

History: Petition for Certiorari filed July 15, 1997. Petition for Certiorari denied October 6, 1997.

*Holding below: (NM CtApp, 3/14/97) Indian preemption doctrine is inapplicable to, and thus does not exempt from state taxation, proceeds of contract under which builder contracted directly with federal agency, U.S. Dept. of Health and Human Services, rather than with Indian tribe or tribal members, to build hospital on Indian reservation.

Charles v. Charles
Docket No. 97-1336

Subjects: Jurisdiction -- Connecticut; Divorce suits -- Connecticut; Jurisdiction -- Mashantucket Pequot Tribe of Connecticut; Divorce suits -- Mashantucket Pequot Tribe of Connecticut; United States. Connecticut Indian Land Claims Settlement Act.

*Issues: (1) Under Section 6 of Connecticut Indian Land Claims Settlement Act, 25 USC 1755, has Connecticut validly assumed civil jurisdiction over Mashantucket Pequot Reservation even though state took no formal action to manifest its intent to assume such jurisdiction (in contrast to what state has done to assume jurisdiction over another reservation within state), and tribe did not formally consent to state's assumption of such jurisdiction? (2) In this divorce and custody case, did Connecticut courts err in failing to abstain in favor of parallel proceedings before Mashantucket Pequot Tribal Court when (a) tribal court has jurisdiction to decide matter; (b) defendant is enrolled member of tribe who lives on tribal reservation, child is enrolled member of tribe, and plaintiff is not Connecticut resident; and (c) terms of Connecticut Indian Land Claims Settlement Act, even if construed to vest state with concurrent jurisdiction, would still require state to apply principles of tribal law that do not conflict with state law?

History: Petition for certiorari filed February 17, 1998. Certiorari denied May 25 1998.

*Holding below: Charles v. Charles, 701 A.2d 650, 2nd Cir. Section 6 of Mashantucket Pequot Indian Claims Settlement Act, 25 USC 1755, which provides that ''notwithstanding the provision relating to a special election in [25 USC 1326], the reservation of the Tribe is declared to be Indian country subject to State jurisdiction to the maximum extent provided in [25 USC 1321-1326],'' had effect of subjecting residents of Mashantucket Pequot reservation to Connecticut courts' civil and criminal jurisdiction without need for consent of tribal members expressed in vote as provided in 25 USC 1326, and thus member of tribe residing on reservation was resident of Connecticut for purposes of statute giving superior court jurisdiction of divorce actions involving at least one party who has been state resident for 12 months.

Citizen Potawatomi Nation v. C&L Enterprises, Inc.
Docket No. 96-1721

Subjects: Breach of contract -- Citizen Potawatomi Nation, Oklahoma; Sovereign immunity -- Citizen Potawatomi Nation, Oklahoma; United States. Constitution. Supremacy clause; United States. Indian commerce clause; Contracts -- Citizen Potawatomi Nation, Oklahoma; Real property -- Off Indian reservations -- Citizen Potawatomi Nation, Oklahoma.

*Issues: (1) Do state courts violate Indian Commerce and Supremacy Clauses by rejecting federal decisional law that Indian tribes are immune from suit in state courts even for actions on contracts executed outside of Indian country? (2) Does state court violate Indian Commerce and Supremacy Clauses by ignoring Supreme Court decisions to enter money judgments against Indian tribe for unperformed contract to build roof on building located on land owned by tribe when tribe has not waived sovereign immunity and contract is not endorsed by secretary of interior?

History: Petition for Certiorari filed April 25, 1997. Judgment vacated June 1, 1998.

*Holding below: (Okla CtCivApp 2dDiv, 11/5/96) Indian tribe is not immune from suit in state court by non-Indian contractor for tribe's alleged breach of contract for construction of roof on building built by tribe on non-trust, off-reservation property.

Cohen v. Little Six, Inc.
Docket No. 96-1962

Subjects: Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake; Little Six, Inc.; Sovereign immunity -- Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake; Personal injuries; Casinos -- Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake.

*Issues: (1) Does Adarand Constructors Inc. v. Pena, 515 U.S. 200, (1995), limit or overrule Morton v. Mancari, 417 U.S. 535 (1974), by requiring strict level of scrutiny for statutory schemes benefiting Indian tribes and/or tribal businesses as racially distinct groups? (2) Is operation of for-profit gambling casino ''governmental'' purpose that entitles corporation chartered by Indian tribe to assert sovereign immunity as defense to tort claims arising from casino's normal business operations?

History: Petition for Certiorari filed June 9, 1997. Petition for Certiorari denied June 1, 1998.

*Holding below: Cohen v. Little Six, Inc., 543 N.W.2d 376, 8th Cir. Court affirms state court of appeals decision that sovereign immunity bars lawsuit for personal injury sustained in casino located on Indian reservation and owned and operated by corporation created under tribal ordinance, owned and controlled by federally recognized tribe, and operated for governmental purposes of raising and distributing revenue for welfare of tribe.

Comenout v. Wash. Dept. of Community Development
Docket No. 97-1138

Subjects: Fireworks -- Law and legislation -- Washington (State) -- Application -- On trust lands; Fireworks -- Sales -- Puyallup (Wash.); Jurisdiction -- Puyallup (Wash.); Jurisdiction -- Washington (State); Fireworks -- Sales -- On trust lands -- Washington (State).

*Issues: (1) Does state of Washington have jurisdiction to enforce its fireworks law, RCW 70.77, on treaty Indians doing business on off-reservation Indian trust land? (2) Does City of Puyallup have jurisdiction to enforce its municipal fireworks law on treaty Indian doing business on off-reservation Indian trust land?

History: Petition for Certiorari filed January 5, 1998. Petition for Certiorari denied February 2, 1998.

*Holding below: (Wash CtApp Div2, 5/9/97) Superior court has jurisdiction to grant declaratory and injunctive relief prohibiting sale of fireworks without state license and city permit on land held in trust for Indians outside formal boundaries of established reservation.

Confederated Tribes of Siletz Indians of Oregon v. U.S.
Docket No. 97-449

Subjects: Constitutional law -- United States; Separation of powers; Governors -- Oregon -- Rights and responsibilities; United States. Indian Gaming Regulatory Act; Indian gaming -- Confederated Tribes of the Siletz Reservation, Oregon; Gambling on Indian reservations -- Oregon.

*Issues: (1) Does federal statute, 25 USC 2719(b)(1)(A), which requires state governor to enact or administer federal scheme under IGRA to regulate proposed gaming establishment on newly acquired trust land, violate dual sovereignty principles articulated in Constitution? (2) Has Congress unconstitutionally diminished power of executive branch to execute laws of United States by giving state governors power to veto administrative determination of federal officer made pursuant to standards established by Congress in Section 20 of IGRA, 25 USC 2719(b)(1)(A)? (3) Is 25 USC 2719(b)(1)(A), which requires state governor to concur in secretary of interior's legislatively established determination that proposed Indian gaming establishment is in best interest of tribe and is not detrimental to surrounding community, contingent legislation, and if so, is Congress' delegation of this federal policy decision to state official unconstitutional? (4) Is 25 USC 2719(b)(1)(A), which requires state governor to concur in secretary of interior's determination that proposed Indian gaming establishment is in best interest of Indian tribe and its members and is not detrimental to surrounding community, when no state law authority authorizes governor to make such determination, exercise of state authority, and if so, is such congressional delegation unconstitutional?

History: Petition for Certiorari filed September 9, 1997. Petition for Certiorari denied December 15, 1997.

*Holding below: Confederated Tribes of Siletz Indians of Oregon v. U.S., 110 F.3d 688, 9th Cir. Neither Appointments Clause nor separation of powers principles of Constitution are violated by provision of Indian Gaming Regulatory Act, 25 USC 2719(b)(1)(A), that forbids most forms of gaming on land acquired in trust for Indian tribe after 1988 unless governor of state concurs in determination by secretary of interior that gaming is in best interests of tribe and not detrimental to surrounding community.

Crow Tribe of Indians v. Montana
Docket No. 96-1984

Subjects: Taxation -- Law and legislation -- Montana; Mining leases -- Crow Tribe of Montana; Coal -- Sales -- Taxation -- Montana; Sovereignty -- Crow Tribe of Montana.

*Issues: Should doubts be resolved against wrongdoer and appropriate equitable relief be fashioned to remedy violation of statutory and sovereign rights of Crow tribe by imposition of Montana's invalid 30 percent taxes on tribe's coal resources based on courts' finding that illegal taxes ''impair[ed] the tribe's ability to negotiate leases with Shell Oil and other coal companies''?

History: Petition for Certiorari filed June 13, 1997. Petition for Certiorari denied October 6, 1997.

*Holding below: Crow Tribe of Indians v. State of Mont., 98 F.3d 1194, 9th Cir. District court did not err in rejecting Indian tribe's claim that high taxes imposed by Montana on sale and severance of tribe's coal made it impossible for tribe to renegotiate its 1972 lease with Shell Oil Co., thereby interfering with contract and allegedly causing tribe to lose its lease with Shell; although taxes may have impaired tribe's ability to lease its coal, they were only one factor in failure of lease negotiations with Shell, and other factors, including tribal repudiation of 1972 lease before state taxes were imposed and successful 1976 suit by tribe to invalidate lease on ground that Interior Department had approved it without making certain findings required by law, were clearly more influential, and thus district court did not err in refusing to impose constructive trust on taxes collected by Montana on sales of tribal coal.

Duchesne County, Utah v. Ute Indian Tribe
Docket No. 97-570

Subjects: Land tenure -- History -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Uncompahgre Reservation (Utah) -- History; Ute Indian Tribe of the Uintah & Ouray Reservation, Utah -- Boundaries; Diminished Indian reservations -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Disestablished Indian reservations -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Duchesne County (Utah).

*Issues: (1) Has Hagen v. Utah been misconstrued to preserve historic reservation boundaries in Utah that encompass hundreds of thousands of acres of fee lands, contrary to: (i) 20 years of express representations by parties and amici in Ute Indian Tribe and Hagen litigation, which conceded that reservation would consist of only trust lands if public domain language of acts was implemented, (ii) 35 years of express representations by parties and amici in all other related litigation, which similarly conceded that other affected reservation areas would also consist of only trust lands if reservation areas were, in fact, diminished, (iii) any practical consideration when respondent tribe has conceded that implementation will be completely unworkable and unprecedented, and (iv) any consideration of comity because injunction will be said to preclude Utah Supreme Court (and parties and all others) from expressing their views on Hagen, in spite of fact that Utah Supreme Court was affirmed in Hagen? (2) Has precedential scope of Hagen v. Utah been improperly restricted on ''finality'' principles by court of appeals, which summarily precluded any further consideration, in light of Hagen, of status of original Uncompahgre reservation and national forest, which were issues in pari materia in Ute Indian Tribe litigation: (i) when district court expressly stated that it did ''not reach any question'' regarding status of these areas, and (ii) when United States specifically conceded that, in its view, historic Uncompahgre reservation no longer exists (and it is no longer inhabited by any tribal member), and when injunction precludes comity considerations?

History: Petition for Certiorari filed September 29, 1997. Petition for Certiorari denied February 23, 1998.

*Holding below: Ute Indian Tribe of the Uintah and Ouray Reservation v. State of Utah, 114 F.3d 1513, 10th Cir. Decision in Ute Indian Tribe v. Utah, 935 F.Supp. 1473 (CA10 (en banc) 1985), cert. denied, 479 U.S. 994 (1986), that Uintah Valley Reservation had been neither diminished nor disestablished by 1902-1905 allotment legislation, that 1905 withdrawal of national forest lands did not diminish Uintah Valley Reservation, and that 1894 and 1897 allotment legislation did not disestablish Uncompahgre Reservation, is modified, even though time for rehearing has passed, but only to extent that it directly conflicts with Hagen v. Utah, 510 U.S. 399 (1994), which affirmed Utah Supreme Court decision that opening of unallotted Uintah Valley Reservation lands to settlement by 1902-1905 allotment legislation diminished Uintah Valley Reservation; accordingly, lands within original Uintah Valley Reservation boundaries that were unallotted, opened to non-Indian settlement under 1902-1905 legislation, and not thereafter returned to tribal ownership are, in light of Hagen, no longer part of reservation, but, contrary to contention by state and local parties, reservation boundaries are otherwise unaffected by decision in Hagen even though result is checkerboard allocation of jurisdiction between tribe and state.

Feezor v. Babbitt
Docket No. 96-1733

Subjects: United States. Indian Gaming Regulatory Act; Indian gaming -- Shakopee Mdewakanton Sioux Community of Minnesota; Revenue sharing -- Shakopee Mdewakanton Sioux Community of Minnesota; Tribal membership disputes -- Shakopee Mdewakanton Sioux Community of Minnesota; Shakopee Mdewakanton Sioux Community of Minnesota -- Membership; Exclusive jurisdiction -- Shakopee Mdewakanton Sioux Community of Minnesota; Jurisdiction -- United States; Sovereign immunity -- Shakopee Mdewakanton Sioux Community of Minnesota.

*Issues: (1) May qualified members of federally recognized Indian tribe, as only persons intended by Congress to benefit from that tribe's gaming operations, seek declaratory and injunctive relief in federal court to halt distributions of net gaming revenues to acknowledged non-members of tribe in violation of IGRA? (2) Does federally recognized Indian tribe, by engaging in federally regulated gaming activities, waive its right to claim sovereign immunity from enforcement of IGRA?

History: Petition for Certiorari filed April 28, 1997. Petition for Certiorari denied October 6, 1997.

*Holding below: Smith v. Babbitt, 100 F.3d 556, 8th Cir. Claim that tribe's distribution of gaming proceeds violates provision of Indian Gaming Regulatory Act that limits distribution to tribal members would require review of tribe's membership determinations, which are intra-tribal disputes within exclusive jurisdiction of tribal authorities, and thus precludes federal court jurisdiction.

Gayle v. Little Six
Docket No. 96-1215

Subjects: Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake; Little Six, Inc.; Sovereign immunity -- Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake; Indian business enterprises -- Off Indian reservations; Sovereign immunity -- Little Six, Inc.; Torts; Casinos -- Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake.

*Issues: (1) Does defense of tribal sovereign immunity apply to Native American owned corporation, which is separate and distinct from tribe, when it conducts business off reservation? (2) Does Native American owned corporation waive tribal sovereign immunity defense when it appoints agent for service of process and irrevocably consents to be sued in Minnesota courts for purposes of voluntarily obtaining certificate of authority to transact business in Minnesota?

History: Petition for Certiorari filed January 29, 1997. Petition for Certiorari denied June 1, 1997.

*Holding below: Gavle v. Little Six, Inc., 555 N.W.2d 284, 8th Cir. Tribal business entity, organized for general benefit of federally recognized Indian tribe and closely linked to tribe's governing structure, is entitled to sovereign immunity from civil action in state court, and thus sovereign immunity bars state court action by former employee, alleging tortious conduct both within and outside of Indian country, against tribal business entity that is incorporated under tribal ordinance, has issued one share of stock owned by all voting members of tribe, and is registered with state as foreign corporation transacting for-profit business within state; tribal entity's registration with state as foreign corporation and its attendant irrevocable consent to service of process did not waive its sovereign immunity.

Hale v. Secakuku
Docket No. 97-1022

Subjects: Joint-use land -- Hopi Tribe of Arizona; Joint-use land -- Navajo Nation, Arizona, New Mexico & Utah; Grazing; Damages -- Hopi Tribe of Arizona; United States. Navajo-Hopi Land Settlement Act of 1974; Evidence, Expert.

*Issues: (1) Should this court resolve circuit conflict as to whether standards governing admissibility of expert testimony set forth in Daubert v. Merrell Dow Pharmaceuticals Inc. are applicable to all expert testimony and not just expert testimony based upon ''novel scientific theory''? (2) Under 1974 Navajo-Hopi Settlement Act, does federal government's liability for damages to Hopi Partitioned Land depend on whether or not government's failure to perform its legal duty to protect HPL was unreasonable? (3) Under 1974 Navajo-Hopi Settlement Act, should Navajo Nation be liable to Hopi Tribe for monetary damages to lands in absence of any proof that Hopi suffered any monetary loss?

History: Petition for Certiorari filed December 16, 1997. Petition for Certiorari denied February 23, 1998.

*Holding below: Masayesva v. Hale, 118 F.3d 1371, 9th Cir. In suit under 1974 Navajo-Hopi Settlement Act to adjudicate Hopi claims of Navajo overgrazing of joint use area of reservation, district court did not abuse its discretion in admitting expert testimony of professor of range economics whose appraisal of fair value of Navajo grazing derived from his relatively straightforward application of range economics, rather than from novel scientific theory, and thus did not contravene test for expert scientific testimony of Daubert v. Merrell Dow Pharmaceuticals Inc., 509 U.S. 579 (1993); United States' liability under 1974 Act for damages to land if it fails ''to provide protection where such protection is or was required by law or by the demands of the trust relationship,'' 25 USC 640d-5(d), should be measured by reasonableness standard derived from government's trust obligations, which require that it take those protective measures that reasonable or prudent trustee would take, and thus district court's finding that damage to Hopi land was not shown to have been caused by unreasonable government action or inaction, precluding government liability, is affirmed; Hopi were entitled to recover damages for lost grazing opportunity on land that could have been used for grazing but was left fallow to accelerate restoration process.

Kawerak Reindeer Herders Ass'n Inc . v. Williams
Docket No. 97-1280

Subjects: United States. Reindeer Industry Act of 1937; Reindeer industry -- Alaska -- Federal supervision; Equality before the law; Due process of law; United States. Constitution. 5th Amendment; Constitutional law.

*Issues: (1) In light of Adarand Constructors Inc. v. Pena, 515 U.S. 200 (1995), does rational basis standard of review adopted in Morton v. Mancari, 417 U.S. 535 (1974), continue to apply to constitutional equal protection challenges to congressional enactments singling out Native Americans for special treatment? (2) If so, is application of Mancari standard of equal protection review of Indian classifications restricted to those addressing ''uniquely Indian interests''? (3) Is Reindeer Industry Act, as construed by secretary of interior to prohibit non-natives from competing in industry, constitutional under equal protection component of Fifth Amendment's Due Process Clause?

History: Petition for Certiorari filed February 5, 1998. Petition for Certiorari denied May 18, 1998.

*Holding below: Williams v. Babbitt, 115 F.3d 657, 9th Cir. Although Interior Board of Indian Appeals' interpretation of 1937 Reindeer Act to prohibit entry of reindeer industry in Alaska by persons who are not Alaska Natives raises grave constitutional questions that implicate entire title of U.S. Code, it is unnecessary to resolve them in light of interpretation of Reindeer Act, adopted herein, as not precluding non-natives from owning, importing, or selling reindeer in Alaska.

Kiowa Tribe of Oklahoma v. Aircraft Equipment Co.
Docket No. 97-216

Subjects: Promissory notes; Business enterprises -- Off Indian reservations -- Oklahoma; Sovereign immunity -- Kiowa Indian Tribe of Oklahoma; Jurisdiction -- Oklahoma; Debtor and creditor -- Oklahoma; Tribal self-determination -- Kiowa Indian Tribe of Oklahoma.

*Issues: (1) Does seizure of federally recognized Indian tribe's tribal revenue by use of state court post-judgment remedies: (a) violate tribe's sovereign immunity, or (b) infringe upon tribe's right to self-government and Congress' goal of tribal self-determination? (2) Does state court injunction that prohibits federally recognized Indian tribe from enforcing its tribal tax laws on Indian country under tribe's jurisdiction: (a) violate tribe's sovereign immunity, or (b) infringe upon tribe's right to self-government and Congress' goal of tribal self-determination?

History: Petition for Certiorari filed July 30, 1997. Judgement vacated June 1, 1998.

*Holding below: Kiowa Tribe of Oklahoma v. Hoover, 939 P.2d 1143, 10th Cir. Doctrine of tribal sovereign immunity does not bar enforcement, via creditor's bill directed against tribe's tax collector and taxpayers, of non-Indian contractor's state court judgment against Indian tribe that ventured outside Indian country, engaged in commercial activity for economic gain, and created contract controversy that was ultimately settled in state court of competent jurisdiction by money judgment sought to be enforced.

Leech Lake Band of Chippewa Indians v. Cass County, Minn.
Docket No. 97-235

Subjects: United States. General Allotment Act (1887); Real property tax -- Minnesota; Real property tax -- Cass County (Minn.); Real property -- Leech Lake Band of Chippewa Indians; Indian land transfers -- Leech Lake Band of Chippewa Indians; Ad valorem tax -- Minnesota; Ad valorem tax -- Cass County (Minn.).

*Issues: Was inherent tax immunity of tribal governments extinguished with unmistakable clarity by provisions in 1887 General Allotment Act permitting land to be patented in fee to individual Indians?

History: Petition for Certiorari filed August 7, 1997. Petition for Certiorari denied November 3, 1997.

*Holding below: Leech Lake Band of Chippewa Indians v. Cass County, Minn., 108 F.3d 820, 8th Cir. Section 3 of 1889 Nelson Act, which allotted certain land on reservation by incorporating mechanisms of 1887 General Allotment Act at issue in Yakima County v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992), evinced unmistakably clear intent required by Yakima to allow state ad valorem taxes on lands patented in fee after enactment of Burke Act proviso in 1906 (which amended GAA to make clear that allottees would be subject to state law only after expiration of trust period and issuance of patent in fee simple), but not if patented before 1906, and thus Section 3 land that was patented after 1906 and later reacquired by tribe is taxable.

Lower Brule Sioux Tribe v. South Dakota
Docket No. 96-1928

Subjects: Hunting -- On Indian reservations -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota -- State supervision -- South Dakota; Fishing -- On Indian reservations -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota -- State supervision -- South Dakota; Sovereignty -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Hunting rights -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Fishing rights -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; Exclusive jurisdiction -- South Dakota; Law -- South Dakota -- Application -- On Indian reservations -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota.

*Issues: (1) Should certiorari be granted to determine whether Congress may empower South Dakota to exercise independent jurisdiction over recreational activities within taken areas, including its jurisdiction over non-Indians and non-members? (2) Should certiorari be granted to clarify Montana v. U.S., 450 U.S. 544 (1981), exceptions that are to be applied to activities of general public within taken areas within Lower Brule Sioux Reservation that has not been opened under homestead laws? (3) Should certiorari be granted to clarify effects on jurisdiction of tribe when allotted Indian sells his or her lands to non-Indian or non-member Indian within exterior boundaries of reservation? (4) Should certiorari be granted to clarify circumstances when summary judgment is appropriate for Indian jurisdiction cases that must be decided by making particularized inquiries into numerous and complex facts?

History: Petition for Certiorari filed June 3, 1997. Petition for Certiorari denied October 6, 1997.

*Holding below: Lower Brule Sioux Tribe v. State of S.D., 104 F.3d 1017, 8th Cir. Indian tribe lacked inherent sovereignty to regulate hunting and fishing by non-members on non-member-owned fee lands because state's regulation of that conduct did not threaten political integrity, economic security, or health and welfare of tribe, given relatively insignificant revenue from licensing and lack of evidence that significant number of tribal members depend on wild game for sustenance; Congress, in 1944 Flood Control Act and two statutes taking land in reservation, gave Army Corps of Engineers regulatory control over taken areas, but did not preempt state law, expressly barring in 16 USC 460d any use of taken land ''inconsistent with the laws for the protection of fish and game of the State in which such area is situated,'' and thus South Dakota has exclusive regulatory jurisdiction over activities at issue.

Murdock v. U.S.
Docket No. 97-1575

Subjects: United States. Ute Partition and Termination Act; Ex members -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah -- Mixed descent; Hunting rights -- Ex members -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Fishing rights -- Ex members -- Ute Indian Tribe of the Uintah & Ouray Reservation, Utah; Equality before the law.

*Issues: In contravention of this court's precedent and in conflict with another circuit court of appeals, 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. Vacated June 15, 1998.

*Holding below: U.S. v. Von Murdock, 132 F.3d 534, 10th Cir. Ute Termination Act specifically ended tribal membership of mixed-bloods once they received their share of tribal assets, and also recognized tribe's right thereafter to determine new members; act's distinction between full-bloods and mixed-bloods is not improper racial classification and does not violate due process or equal protection under Fifth Amendment; nor does act violate First Amendment by preventing defendant, child of mixed-blood Utes accused of unlawfully hunting on tribal land, from expressing his right to identify with tribe and to vote in tribal elections; accordingly, defendant, whose parents, mixed-blood Utes, were not members of tribe when he was born in 1968 and who has not subsequently met tribe's requirements for membership, did not inherit tribal right of user in Ute tribe's hunting and fishing rights; nor is defendant's contention that he enjoys such rights by virtue of membership in Uintah Band, which joined other bands to form Ute tribe, persuasive, inasmuch as Uintah Band ceased to exist separately outside Ute Tribe in 1937, after which jurisdiction over what was formerly Uintah Band's territory was to be exercised by Ute Tribe and rights formerly vested in Uintah Band were to be defined by Ute constitution and exercised by Ute Tribe; even if Uintah Band continues to maintain its own identity, it does so, under Ute constitution, only within context of Ute tribe; district court's denial of defendant's motion to dismiss charge against him alleging violation of 18 USC 1165, which bans hunting on land belonging to Indian tribe without lawful authority or permission, is therefore affirmed.

Patch v. U.S.
Docket No. 97-684

Subjects: Jurisdiction -- Arizona -- On Indian reservations -- Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California; Traffic violations -- On Indian reservations -- Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California.

*Issues: (1) Did court of appeals err in finding that state law enforcement officers have law enforcement authority over Native American members of Indian reservation for traffic violations occurring exclusively within that reservation? (2) Did court of appeals err in denying de novo review of suppression motion and in summarily affirming lower court's disposition premised on state law enforcement officers' authority to detain or arrest Native American member of Indian reservation for traffic offense occurring on that reservation while said member stood in doorway of his residence on his reservation? (3) Did court of appeals err in summarily affirming assault conviction notwithstanding defendant's uncontested good-faith mistake defense that his actions were based on his belief that state law enforcement officer had no authority to detain or arrest him?

History: Petition for Certiorari filed August 25, 1997. Petition for Certiorari denied November 17, 1997.

*Holding below: U.S. v. Patch, 114 F.3d 131, 9th Cir. Rationale of Terry v. Ohio, 392 U.S. 1 (1968), justified attempted stop of motorist whom officer observed commit traffic violation, in order to determine whether motorist was non-member of Indian tribe, in which case officer would have jurisdiction over him; doctrine of hot pursuit justified officer in following motorist from highway, where officer had jurisdiction, to house located on Indian reservation, where officer had no jurisdiction; officer was performing his lawful duties and was not trespasser on porch of house as he continued his pursuit of motorist whom he had not yet identified, and, therefore, federal conviction of motorist, who is member of Indian tribe, of assaulting officer during confrontation on porch of defendant's home is affirmed.

Penobscot Indian Nation v. Key Bank of Maine
Docket No. 97-219

Subjects: United States. Racketeer Influenced and Corrupt Organizations Act; Fee simple -- Penobscot Tribe of Maine; Trust lands.

*Issues: Should 25 USC 81, enacted for benefit of Indian tribes in 1872, be judicially construed to reflect modern trends and practices and, thus, to limit words ''Indian lands'' to mean only ''Indian trust lands'' and not lands held by Indians in fee simple for investment purposes?

History: Petition for Certiorari filed August 4, 1997. Petition for Certiorari denied October 14, 1997.

*Holding below: Penobscot Indian Nation v. Key Bank of Maine, 112 F.3d 538, 1st Cir. Agreement made by Indian tribe concerning land that it owns in fee simple for investment purposes is not agreement ''relative to [Indian] lands'' that must be approved by secretary of interior pursuant to 25 USC 81.

Prescott Convention Center, Inc. v. Scott
Docket No. 97-788

Subjects: Taxation -- Arizona; Law -- Arizona -- Application -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; Hotels -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; Tribal business enterprises -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona. Sovereignty -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; Economic development -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona.

*Issues: (1) Can Arizona tax operations of hotel that is owned and regulated by Indian tribe and that was specifically designed and federally funded to promote tribe's economic development? (2) In assessing whether federal law preempts state's attempt to tax tribally owned hotel, do separation-of-powers concerns allow federal court to second-guess executive branch's determination that hotel advances significant federal and tribal interests? (3) When Indian tribe's use of non-Indian assistance is federally required and advances federal and tribal interests, does that involvement nonetheless diminish federal and tribal interests to be considered in determining whether state can tax project?

History: Petition for Certiorari filed November 10, 1997. Petition for Certiorari denied January 20, 1998.

*Holding below: Yavapai-Prescott Indian Tribe v. Scott, 117 F.3d 1107, 9th Cir. State taxation of room rentals and food and beverage sales to non-Indians by non-Indian lessee of hotel that is owned by tribe, located on reservation, and leased to non-Indian party with tribe having residual interest in lease is not preempted, because tribal and federal interest in hotel's operation is outweighed by state interest, inasmuch as no tribal member is employed by hotel (although hotel agreed to prefer tribal members in hiring), bulk of construction costs came from non-tribal and non-federal sources, tribal contribution to quality of food served at hotel is minimal (two or three inspections annually), hotel guarantees tribe only 114 percent of its gross revenue (and record does not reveal what tribe has received in terms of 20 percent of net revenue to which it is entitled), tribe has no active role in business of hotel (although it operates slot machines and automated poker games on premises), and hotel is subject to state's criminal, labor, and lien laws.

Pueblo of Santa Ana v. Kelly
Docket No. 97-1617

Subjects: United States. Indian Gaming Regulatory Act; Intergovernmental agreements -- New Mexico; Intergovernmental agreements -- Pueblo of Santa Ana, New Mexico; Indian gaming -- Pueblo of Santa Ana, New Mexico; Gambling on Indian reservations -- New Mexico; Governors -- New Mexico -- Powers and duties.

*Issues: (1) Under IGRA, may post hoc challenge to validity of state's agreement to approved tribal-state gaming compact be adjudicated directly in courts, or must it first be made to secretary of interior? (2) Under IGRA, may tribal-state compact that has been approved by secretary of interior and that is in effect be judicially invalidated on basis of subsequent court determination that there was state law defect in state's agreement to compact?

History: Petition for Certiorari filed April 10, 1997. Petition for Certiorari denied October 6, 1997.

*Holding below: Pueblo of Santa Ana v. Kelly, 104 F.3d 1546, 10th Cir. Tribal-state compacts permitting reservation gambling, void from their inception because governor who signed them lacked authority under state law to do so, cannot be rendered valid by their subsequent approval by secretary of interior through process outlined in Indian Gaming Regulatory Act.

South Dakota v. U.S.
Docket No. 97-276

Subjects: Motor vehicles -- Sales -- Taxation -- South Dakota; Law -- South Dakota -- Application -- Cheyenne River Sioux Tribe of the Cheyenne River Reservation, South Dakota -- Members; Jurisdiction -- South Dakota; Excise tax -- South Dakota.

*Issues: May South Dakota's one-time 3 percent excise tax imposed in lieu of sales and use taxes upon motor vehicles ''purchased or acquired for use'' within state, and which is virtually identical to taxes imposed upon sale of motor vehicles in other states, be applied to Cheyenne River Sioux tribal members residing on their reservation who purchase motor vehicles outside their reservation but within South Dakota?

History: Petition for Certiorari filed August 11, 1997. Petition for Certiorari denied November 17, 1997.

*Holding below: U.S. on Behalf of Cheyenne River Sioux Tribe v. State of S.D., 105 F.3d 1552, 8th Cir. South Dakota's excise tax on value of any motor vehicle purchased or acquired for use in state and required to be registered there, which is collected only when vehicle is first licensed in state, operates essentially as tax on ownership of motor vehicle, which is sort of on-reservation activity that state may not tax without express congressional authorization, rather than as tax on off-reservation sales transaction, and thus state lacks jurisdiction to impose excise tax on tribal members residing on reservation.

Wilson v. Marchington
Docket No. 97-1348

Subjects: Traffic accidents -- On Indian reservations -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Law -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana -- Application -- Non-members of a tribe; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.

*Issues: (1) If non-Indians have interest in highway on reservation, should tribal interest in protecting its members be sufficient to exercise civil jurisdiction? (2) Did Blackfeet Tribal Court have jurisdiction over this case involving motor vehicle collision that occurred on Indian reservation between tribal member and non-tribal member? (3) Did Ninth Circuit err in applying holding of Strate v. A-1 Contractors, based on presumptions that facts of two cases are similar?

History: Petition for certiorari filed February 17, 1998. Petition for certiorari denied April 20, 1998.

*Holding below: Wilson v. Marchington, 127 F.3d 805, 9th Cir. Principles of comity, not full faith and credit, govern whether federal district court should recognize and enforce tribal court judgments, and require federal court to refuse to recognize tribal court judgment in tribal member's suit against non-Indian over traffic accident on state highway, within reservation, over which tribe lacked jurisdiction under rule announced in Strate v. A-1 Contractors, 520 U.S. 438 (US SupCt 1997).

Yavapai-Prescott Indian Tribe v. Scott
Docket No. 97-796

Subjects: Taxation -- Arizona; Law -- Arizona -- Application -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; Hotels -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; Tribal business enterprises -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona. Sovereignty -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona; Economic development -- Yavapai-Prescott Tribe of the Yavapai Reservation, Arizona.

*Issues: (1) Are state's attempts to tax operation of tribally owned hotel on Indian reservation discriminatory--and therefore preempted--especially when state refuses to provide hotel basic government services it provides to off-reservation entities, and when tribe provides those services at its own expense? (2) Does tribal economic development project that combines Indian and non-Indian capital to attract customers to hotel on reservation represent sovereignty interest of tribal government that furthers federal policy and preempts state taxation?

History: Petition for Certiorari filed November 10, 1997. Petition for Certiorari denied January 20, 1998.

*Holding below: Yavapai-Prescott Indian Tribe v. Scott, 117 F.3d 1107, 9th Cir. State taxation of room rentals and food and beverage sales to non-Indians by non-Indian lessee of hotel that is owned by tribe, located on reservation, and leased to non-Indian party with tribe having residual interest in lease is not preempted, because tribal and federal interest in hotel's operation is outweighed by state interest, inasmuch as no tribal member is employed by hotel (although hotel agreed to prefer tribal members in hiring), bulk of construction costs came from non-tribal and non-federal sources, tribal contribution to quality of food served at hotel is minimal (two or three inspections annually), hotel guarantees tribe only 114 percent of its gross revenue (and record does not reveal what tribe has received in terms of 20 percent of net revenue to which it is entitled), tribe has no active role in business of hotel (although it operates slot machines and automated poker games on premises), and hotel is subject to state's criminal, labor, and lien laws.

Back to Top


* "Issues" and "Holding below" reproduced with permission from The United States Law Week on the Internet and print at: http://www.bna.com

Copyright 1997-2006 by The Bureau of National Affairs, Inc. (800-372-1033)

Back to Top

A service of the National Indian Law Library of the Native American Rights Fund


*Organization by status.

Cases decided

Petition for certiorari granted and carried over into the 1998-1999 term

Petition for certiorari pending and carried over into the 1998-1999 term

Petition for certiorari denied


A note about links used in this document

Text highlighted in blue are links to information available on the Internet free of charge. Text highlighted in green are links to information available on Westlaw, for the convenience of those who have a Westlaw account. Please contact the National Indian Law Library if you need help obtaining legal documents.

The National Indian Law Library and Native American Rights Fund are not affiliated with Westlaw. See www.westlaw.com for more information about the Westlaw legal databases.

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map