2003-04 Term, Supreme Court Cases
See Cases by Status
Two Indian law-related cases were decided by the Supreme
Court in this term.
Subjects: Drunkenness (Criminal law); Assault and battery
-- On Indian reservations; Police; Jurisdiction -- Criminal actions
arising in Indian Country (U.S.); Indians of North America -
Non-members of a tribe; Jurisdiction -- Spirit Lake Tribe, North
Dakota (formerly known as the Devils Lake Sioux Tribe); Jurisdiction
-- United States; Double jeopardy -- United States.
*Issues: Does Section 1301, as amended,
validly restore tribes' sovereign power to prosecute members of
other tribes (rather than delegating federal prosecutorial power
to tribes), such that federal prosecution following tribal prosecution
for offense with same elements is valid under Fifth Amendment's
double jeopardy clause?
Holdings: (from Westlaw) The
Supreme Court, Justice Breyer, held that:
(1) source of tribe's power to prosecute and punish defendant for
violence to a policeman was inherent tribal sovereignty rather than
delegated federal authority;
(2) Congress possessed constitutional power to lift or relax restrictions
on Indian tribes' criminal jurisdiction over nonmember Indians that
political branches of government had previously imposed; and
(3) the Double Jeopardy Clause could not bar federal prosecution
of defendant for assaulting a federal officer after Indian tribe's
prosecution and punishment of him for violence to a policeman, absent
any showing that the source of the tribal prosecution was federal
Petition for certiorari was filed on 7/22/2003. Petition granted
on 9/30/03. Argued
1/21/04. Decided 4/19/04.
v. Lara, 324
F.3d 635, 8th cir. Distinction between powers that Indian
tribe derives from its retained sovereignty and powers delegated
to tribe by Congress is of constitutional magnitude and thus is
matter ultimately entrusted to Supreme Court, and not Congress;
accordingly, 1990 amendments to Indian Civil Rights Act, 25
U.S.C. § 1301, are ineffective insofar as they attempted
to overturn Duro v. Reina, 495
U.S. 676 (1990), which held that tribe's retained or inherent
sovereignty does not provide it with criminal jurisdiction over
nonmember Indians; tribal authority to prosecute Indian who is not
member of tribe derives from power delegated by Congress rather
than from tribe's retained sovereignty, and thus federal prosecution
of Indian for offenses for which he had previously been prosecuted
by tribe of which he was not member is barred by double jeopardy
clause, because authority for both prosecutions is derived from
same sovereign source.
Supreme Court pleadings and briefs: Tribal
Supreme Court Project, Oral
American Rights Fund Tribal Supreme Court Project: Various
Related News Stories: Supreme Court to Rule on Tribal-federal
Indians Fighting Double Jeapordy (Helena
Independent Record) 10/3; Duro rides again Supreme Court review
will test extent of tribal sovereignty, Part One (Indianz.com)
12/2/03; Defense Counselor Reichert Discusses U.S. v. Lara (Indian
Country Today) * 12/19; Tribal Prosecutions: the Jurisdictional
News Service) 12/03; Supreme Court Hears Arguments over Tribal
Tribune) 01/21; Supreme Court allows federal prosecution after
tribal conviction (AP)
4/19, Supreme Court Affirms Tribal Powers over All Indians (Indianz.com)
Environmental regulation; Water rights -- Water quality.
*Issues: (1) Does pumping of water by
state water management agency that adds nothing to water being pumped
constitute "addition" of pollutant "from" point
source triggering need for NPDES permit under Clean Water Act? (2)
Should court below have deferred to consistent and long-held federal
and state agency position that petitioner's pumping does not constitute
"addition" that requires NPDES permit?
Holdings: (from Westlaw) The
Supreme Court, Justice O'Connor, held that:
(1) “discharge of a pollutant,” for which a National
Pollutant Discharge Elimination System (NPDES) permit is required
under the Clean Water Act, includes point sources that do not themselves
generate pollutants, and
(2) triable issues existed regarding whether canal and wetland areas
were meaningfully distinct water bodies.
Vacated and remanded.
for certiorari was filed on 10/21/02.Petition granted
on 7/27/03. Argued 1/14/04. Decided 3/23/04.
Tribe v. So. Florida, Eleventh Cir., 280
F.3d 1364. South Florida Water Management District's
operation, in interest of flood prevention, of pump station, which
pumps water collected by canal--runoff from water basin and seepage
through levees--into water conservation area, is cause-in-fact
of addition of pollutants to water conservation area, because
polluted waters from canal would not normally flow into water
conservation area, and thus, release of water caused by pump station's
operation constitutes addition of pollutants from point source,
for which National Pollutant Discharge Elimination System permit
under Clean Water Act is required.
Supreme Court pleadings and briefs: Tribal
Supreme Court Project, Oral
Related News Stories: Western officials await 'Glades water
Florida Sun-Sentinel) 2/7/03, Scalia Sides with Tribe but
View Carries No Weight (Indianz.com)
03/24, High Court Ruling in Everglades Case Pleases Both Sides
Beach Post) 03/24
Petition for Certiorari was granted
in three Indian law cases that were carried over to the next term.
Subjects: Real property -- Oneida Nation of New York; Indian Country (U.S.);
Tax exemption; Local taxation -- New York.
(1) Is alleged reservation land Indian country pursuant
U.S.C. § 1151 and this court's decision in Alaska
v. Native Village of Venetie Tribal Gov't, 522
U.S. 520, 66 U.S.L.W. 4145 (1998), when land was neither
set aside by federal government nor superintended by federal
government? (2) Was alleged reservation land set aside
by federal government for purposes of Indian country analysis
U.S.C. § 1151 and Venetie when alleged reservation
was established by state of New York in 1788 Treaty of
Fort Schuyler, and not by any federal treaty, action,
or enactment? (3) Did 1838 Treaty of Buffalo Creek, which
required New York Oneidas to permanently abandon their
lands in New York, result in disestablishment of Oneida's
alleged New York reservation? (4) May alleged reservation
(i) remain Indian country or (ii) be subject to protections
of Non-Intercourse Act, 25
U.S.C. § 177, if tribe claiming reservation status
and Non-Intercourse Act protection ceases to exist?
Petition for certiorari was filed on 12/11/2003. Petition
Indian Nation of New York v. City of Sherrill,
Second Cir. 337
District court's determination that properties reacquired
by Oneida Indian Nation of New York are in Indian country
and therefore are not subject to taxation by New York state
and its municipalities, absent explicit congressional authorization,
is affirmed, notwithstanding city's contention that although
properties were part of Oneidas' aboriginal land and tribe's
reservation as recognized by Treaty of Canandaigua, they
are subject to taxation because they are no longer within
Indian country and Oneidas no longer exist as tribe; properties
in city of Sherrill, N.Y., including gasoline station, convenience
store, and textile manufacturing and distribution facility,
are located on Oneidas' historical reservation land set
aside for tribe under Treaty Canandaigua and therefore satisfy
conditions of 18
U.S.C. § 1151, which defines Indian country to
include "all dependent Indian communities within the
borders of the United States whether within the original
or subsequently acquired territory thereof, and whether
within or without the limits of a state"; Buffalo Creek
Treaty includes no text that provides "substantial
and compelling" evidence of Congress's intention to
diminish or disestablish Oneidas' New York reservation,
and therefore cannot be read to effect formal disestablishment
of such reservation; city's contention that disputed issues
of fact exist as to whether Oneidas have maintained tribal
existence so as to be entitled to claim properties as reservation
land is unavailing, appeals court having found no requirement
in law that federally recognized tribe must demonstrate
its continuous existence in order to assert claim to its
Related News Stories: Oneida Indian Nation responds
to the City of Sherrill's U.S. Supreme Court petition. (Oneida
Dispatch) 01/29; High Court Wants Government's Perspective
on Oneida Tax Feud (Newsday.com) 02/23. Word from Supreme
Court Expected Monday (Oneida
Subjects: United States.
Indian Self-Determination and Education Assistance
U.S.C. 450 et seq.); Contracts; Cost; Self-determination.
*Issues: (1) Can federal government repudiate,
without liability, express contractual commitments for
which it has received valuable consideration, either by
spending down discretionary agency appropriations otherwise
available to pay its contracts, or simply by changing
law and contracts retroactively? (2) Do government contract
payment rights that are contingent on "the availability
of appropriations" vest when agency receives lump-sum
appropriation that is legally available to pay contracts--as
is law of Federal Circuit under Blackhawk Heating &
Plumbing Co. v. United States, 622 F.3d 539 (Ct. Cl. 1980)--or
is government's liability calculated only at end of year
after agency has spent its appropriations on other activities,
as Tenth Circuit ruled below?
History: Petition for certiorari was filed on 4/03/03. Petition
Nation v. Thompson, 10th Cir., 11/26/02, 311
F.3d 1054. Provision of Indian Self-Determination
and Education Assistance Act stating that "[n]otwithstanding
any other provision in this subchapter, the provision
of funds under this subchapter is subject to the availability
of appropriations and the Secretary [of Health and Human
Services] is not required to reduce funding for programs,
projects, or activities serving a tribe to make funds
available to another tribe," 25
U.S.C. § 450j-1(b), clearly expresses Congress's
intent that provisions that obligate secretary to provide
funding for various self-determination contracts or compacts,
to operate programs previously operated by federal government,
in amount equal to what would have been provided if HHS
had continued to provide, in this case, health care services
itself, as well as contract support costs (i.e., indirect
costs incurred by tribe in carrying out self-determination
contract), do not create entitlement on tribes' part--independent
of appropriations to cover such amounts--to recover complete
contract support costs incurred in connection with health
care services, and thus federal government is not liable
to tribes for contract support costs they incurred in
administering expanded health programs after money had
already been disbursed for years in question and no other
appropriations were available.
News Stories: Supreme Court to Resolve Self-determination
Thompson v. Cherokee Nation of Oklahoma
Subjects: Cherokee Nation
of Oklahoma; United States. Dept. of Health and
Human Services; Breach of contract -- United States;
United States. Indian Self-Determination and Education
Assistance Act (25
U.S.C. 450 et seq.); Overhead costs; Self-determination.
1) Does ISDEAA require secretary of health and human services
to pay contract support costs associated with carrying out
self-determination contracts with Indian Health Service,
when appropriations were otherwise insufficient to fully
fund those costs and would require reprogramming funds needed
for noncontractable, inherently federal functions such as
having Indian Health Service? (2) Does Section 314 of 1999
Omnibus Consolidated and Emergency Supplemental Appropriations
Act bar respondent from recovering its contract support
Petition for certiorari was filed on 12/11/2003. Petition
v. Cherokee Nation of Oklahoma, Federal Cir.,
WL 21511710. Availability clause of Indian Self-Determination
and Education Assistance Act, 25 U.S.C. § 450j-1(b),
which provides that "[n]otwithstanding any other provision
in this subchapter, the provision of funds under this subchapter
is subject to the availability of appropriations," does
not excuse failure by secretary of health and human services
to pay full contract support costs incurred by Indian tribe
in administering federal programs under contract with secretary,
when there were no statutory caps on funding in appropriations
acts for relevant fiscal years, and when secretary has not
shown that full payment of contract support costs would breach
statutory ban against reduction in "funding for programs,
projects, or activities serving [another] tribe" in order
to make such payments; in meeting contractual obligations,
secretary lacks discretion, in absence of statutory cap, to
refuse to reprogram funds within lump-sum appropriation for
purposes other than those contemplated at time of appropriation;
funds are "available" within meaning of Section
450j-1(b) when secretary has authority to reprogram and funds
are available within lump-sum appropriation; Section 314 of
1999 Omnibus Consolidated and Emergency Supplemental Appropriations
Act, which provides that "[n]otwithstanding any other
provision of law, amounts appropriated to or earmarked in
committee reports ... for payments to tribes ... for contract
support costs ... are the total amounts for fiscal years 1994
through 1998 for such purposes," does not defeat tribal
right to contract support costs for 1994, 1995, and 1996 fiscal
years that vested long before passage of 1999 appropriations
act; ISDEAA makes it clear that funds devoted by secretary
to "inherently federal functions" are not unavailable
for contract support costs, and thus secretary was obligated
to reprogram such funds in order to pay contract support costs.
News Stories: Supreme
Court to resolve self-determination dispute (Indianz.com)
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for certiorari is pending in three Indian law cases this term.
Minnis & Associates, P.C. v. Kaw Nation
Subjects: Kaw Nation, Oklahoma; Lawyers -- Fees; Sovereign immunity
-- Kaw Nation, Oklahoma.
*Issues: (1) Under C&L
Enterprises v. Citizen Band Potawatomi Indian Tribe of Okla.,
532 U.S. 411,
69 U.S.L.W. 4290 (2001), can tribal chairman assert sovereign immunity
as defense to suit against tribe based on contract approved by governing
body of tribe when: (a) chairman is not party to contract or to
suit; (b) majority of governing body of tribe has admitted that
sums sought are due and owing under contract and has waived sovereign
immunity; and (c) tribal vice chairman, consistent with resolution
adopted by majority of governing body of tribe, confesses judgment
in open court consistent with state statutes? (2) Does state appellate
court have authority to decide internal tribal affairs contrary
to determinations by secretary of interior: (a) by recognizing tribal
chairman as being empowered to represent tribe when secretary has
determined he has no such authority; (b) by recognizing persons
as valid tribal judges and their orders and opinions as valid when
secretary has determined that they are not properly seated as tribal
judges, that their orders and opinions are not valid, and that tribal
court no longer exists; and (c) by refusing to recognize actions
by governing majority recognized by secretary? (3) Consistent with
federal constitutional due process, can state court of appeals,
without briefs or argument, affirm order granting motion to dismiss
filed by nonparty after reversing basis for dismissal and converting
motion to summary judgment when plaintiff has not been given fair
opportunity to litigate: (a) issue of sovereign immunity; and (b)
issue of nonparty's standing?
Petition for certiorari was filed on 6/25/2004.
*Holding below: Michael
Minnis & Associates, P.C. v. Kaw Nation, 90
P.3d 1009, Law firm's contract with Indian tribe included express stipulation
to jurisdiction of tribal courts, uncontroverted evidence established tribal
chairman's express authorization by tribal general council to defend tribe against
law firm's contract action, as well as invalidity of attempts, by putative majority
of tribal executive council, to waive tribal sovereign immunity, to consent
to state court jurisdiction, to confess judgment on law firm's contract claim,
and to dismantle tribal judicial system, and thus law firm's state court contract
action is barred by tribal sovereign immunity.
Joe's v. Norton
Subjects: Indian gaming -- Class III; Gambling on Indian reservations;
Constitutional amendments -- California; Equality before the law;
United States. Constitution. 5th Amendment. United States. Constitution.
14th Amendment; Charities; United States. Indian Gaming Regulatory
Act; Intergovernmental agreements -- Indian Country (California);
California; Tribes -- Indian Country (California).
(1) Does IGRA allow state to permit only tribes to engage in Class
III gaming (casino gambling, including slot machines)? (2) If IGRA
allows such monopoly, does that statute, as well as Proposition
IA, which amended California Constitution to give tribes exclusive
right to operate Class III gaming, and California's 62 compacts
with tribes giving them monopoly rights to conduct Class III gaming,
violate equal protection principles? (3) More generally, can Congress,
consistent with equal protection principles, authorize state to
award major segment of its economy solely to Indian tribes, while
excluding others from participating in that economic arena, even
on non-Indian lands?
Petition for certiorari was filed on 5/27/2004.
Joe's California Grand Casino V. Norton, 353
F.3d 712, Neither California constitutional amendment that
permits operation of casino-type gambling facilities exclusively by
Indian tribes and only on Indian lands, nor state-tribal compacts
implementing such right, violate Indian Gaming Regulatory Act or infringe
Fifth or 14th Amendment equal protection rights of non-Indians, who
are prohibited by California law from operating similar facilities.
v. Cow Creek Band of Umpqua Tribe of Indians
Subjects: Cow Creek Band of Umpqua Indians of Oregon; Jurisdiction
-- Cow Creek Band of Umpqua Indians of Oregon; Detention of persons
*Issues: not yet available
Petition for certiorari was filed on 5/11/2004.
V. Cow Creek Band of Umpqua Tribe of Indian,
the court opinion) A person must
be detained in some way by tribal authority to invoke subject matter
jurisdiction under 25 U.S.C. § 1303. Moore v. Nelson, 270 F.3d
789, 790 (9th Cir.2001). Because Steffler was detained only by Oregon
state authorities, and because the record does not reveal that the
tribe acted in any way to cause the detention, we conclude that the
district court did not err in dismissing Steffler's petition for lack
Petition for certiorari has been denied in twenty-five
Indian law cases so far this term.
Subjects: Indian reservation police -- Dismissal of --
Jicarilla Apache Nation of the Jicarilla Apache Indian Reservation,
New Mexico; United States. Indian Civil Rights Act.
(1) Is tribal forum inaccessible under second prong of Dry Creek
Lodge exception when fired non-Indian tribal police officer
is deprived of his right to call witnesses on his behalf and
present his own testimony at tribal administrative hearing guaranteed
under tribal law and regulation? (2) Does dispute over firing
of non-Indian tribal officer constitute matter of "internal
tribal affairs" under third prong of Dry Creek Lodge when
it promotes, rather than discourages, continuation of corruption
within tribe's police department? (3) Can tribe accuse non-Indian
employee of criminal behavior constituting federal felonies
and fire him when it could not maintain jurisdiction to prosecute
him in its own tribal forums for those same alleged crimes under
holding of Oliphant
v. Suquamish Indian Tribe, 435
Petition for certiorari was filed on 4/26/2004. Petition
was denied on 6/28/04.
*Holding below: Gallegos
V. Jicarilla Apache Nation,
WL 22854632, Indian
tribe's sovereign immunity precludes federal courts from exercising
jurisdiction over Indian Civil Rights Act claims against it
for declaratory relief or money damages, and thus ICRA claims
by non-Indian who was formerly employed by tribal police department
as patrol sergeant and who alleges that he was wrongfully discharged
in retaliation for having uncovered evidence of possible criminal
activities within that department was properly dismissed by
district court for lack of subject matter jurisdiction; former
sergeant's contention that jurisdiction is proper because he
falls within limited exception to tribal sovereign immunity
announced in Dry Creek Lodge Inc. v. Arapahoe & Shoshone
F.2d 682 (10th Cir. 1980), is without merit, because,
to qualify for such exception, plaintiff must demonstrate that
dispute involves non-Indian party, that tribal forum is not
available, and that dispute involves issue falling outside internal
tribal affairs, and, although employee is non-Indian, he had
access to tribal administrative body and availed himself of
that forum, and claims of wrongful termination of tribal employment
are internal tribal affairs.
v. United States
Seminole Nation of Oklahoma; United States; Certificate
of degree of Indian blood; Tribes -- Membership; Heredity; Africa;
United States. Bureau of Indian Affairs.
*Issues: (1) In making Fed.R.Civ.P. 19 determination
of "indispensability" of absent party, may court avoid
deciding whether absent party's claimed interest is "frivolous"
or "legally protected" by asserting that such would
be determination of merits of dispute? (2) Under Rule 19, when
purported interest of absent tribe--to discriminate against
its black members--has been divested (i) by treaty that granted
equal rights of such black citizens to common tribal property,
and (ii) by federal statute that awarded funds to Seminole Nation
of Oklahoma for "common tribal need," and directed
Bureau of Indian Affairs in approving plans for use of funds
to be sure to protect rights of minority members of tribes who
are granted such federal funds, is that "interest"
legally protected one?
Petition for certiorari was filed on 3/15/2004. Petition
was denied on 6/28/04.
ex rel. Davis v. U.S., 343
District court's dismissal of suit by two bands
of Native American tribe--Seminole Nation of Oklahoma--alleging
that because of their African ancestry they have been systematically
denied benefits routinely given to other members of tribe and
that government improperly refused to issue Certificates of
Degree of Indian Blood to members of plaintiff bands, is affirmed,
district court having properly determined that (i) plaintiffs
failed to join indispensable party--tribe itself--with respect
to claim that plaintiffs were wrongfully excluded from participation
in some of tribal assistance programs, and (ii) court lacked
jurisdiction to hear CDIB claim because plaintiffs failed to
show that they had exhausted administrative remedies.
Tribe of Nebraska v. Superior Court of California, Riverside
Subjects: Intertribal Strategic Ventures; Ponca Tribe of
Indians of Oklahoma; Sovereign immunity -- Ponca Tribe of Indians
of Oklahoma; Business -- Off Indian reservations -- Ponca Tribe
of Indians of Oklahoma; Disclosure in accounting.
(1) Can state regulatory agency enforce administrative subpoena
directed to financial institution seeking financial records of
Indian tribe and tribal entity formed pursuant to authority of
that tribe? (2) Does tribal sovereign immunity doctrine arising
from Indian commerce clause, treaty clause, and supremacy clause
permit state, through subpoena, to compel Native American tribe
and tribal entity to allow disclosure of financial records maintained
by bank or other depository institution? (3) Is tribal sovereign
immunity doctrine arising from Indian commerce clause, treaty
clause, and supremacy clause waived or otherwise not recognized
when tribe or tribal entity does business off-reservation or with
non-Indians? (4) Is tribal sovereign immunity doctrine arising
from Indian commerce clause, treaty clause, and supremacy clause
waived or otherwise not recognized when tribal financial records
are maintained by bank or other depository institution?
Petition for certiorari was filed on 3/30/2004. Petition
was denied 6/1/04.
below:(opinion not found as of 4/6/04) Court
denies petition for writ of mandate/prohibition seeking (i)
order directing lower court to strike its denial of motion,
made by entity formed pursuant to authority of participating
Native American tribes, to quash administrative subpoena directed
to bank seeking entity's financial records, and (ii) new order
granting such motion.
South Dakota Dept. Revenue v. Pourrier
Subjects: Motor fuels -- Taxation -- South Dakota; Oglala
Sioux Tribe of the Pine Ridge Reservation, South Dakota; South
Dakota. Dept. of Revenue; Muddy Creek Oil and Gas; Tax refunds
-- South Dakota.
(1) Does Hayden-Cartwright Act, which expressly authorizes
state taxation of sale of motor fuel when sales are made by
"licensed traders" on "reservations,"
authorize South Dakota to impose its motor fuel tax upon sales
of motor fuels within boundaries of Pine Ridge Indian Reservation?
(2) Can corporation formed under laws of South Dakota, as
matter of federal law, qualify as member of Indian tribe for
reason that its sole stockholder is member of tribe?
Petition for certiorari was filed on 4/05/2004. Petition
was denied on 5/24/04.
below:First ruling below: Pourier
v. South Dakota Dept. of Revenue,
Language in 1936 Hayden-Cartwright Act granting states authority to impose taxes
on "sales, purchases, storage, or use of gasoline" by "filling
stations" or "licensed traders" located on U.S. military or "other
U.S.C. § 104, does not manifest congressional intent to allow states
to tax Indian proprietors selling gasoline on Indian reservations; corporation
owned by Indian tribe or by enrolled tribal member residing on Indian reservation
and doing business on reservation for benefit of reservation Indians is enrolled
member for purposes of protecting tax immunity, and thus oil and gas company
having sole shareholder and president who is enrolled member of Oglala Sioux
Tribe and resident of Pine Ridge Indian Reservation in South Dakota is entitled
to seek motor fuel tax refund.
Second ruling below:Pourrier
v. South Dakota of Revenue, S.D., 674
N.W.2d 314, Limitations period applicable to refunds, sought in this case,
of motor fuel tax that was illegally collected is 15 months under S.D.
Codified Laws § 10-47B-141, and any claims for times predating Dec.
17, 1997, are untimely.
News Stories: U.S. Supreme Court Won't Touch Indian Tax
of North America -- Non-members of a tribe; United States.
Federal Tort Claims Act; Civil rights; Tort liability of Indian
tribal governments; Indians of North America -- Tribal membership
-- Exclusion and expulsion; Executions (Law); Sovereign immunity
-- United States; Sovereign immunity -- North Dakota; United
States -- Officials and employees; North Dakota -- Officials
(1) Do BIA officer and county sheriff enjoy absolute immunity
when enforcing ex parte tribal court order banishing non-Indian
from her home on fee land, all other fee lands, and public
highways within reservation? (2) Are BIA officer and county
sheriff entitled to absolute immunity when enforcing tribal
court banishment order against non-Indian when officers threaten
arrest, since BIA officer had no authority to arrest non-Indian,
county sheriff had no authority to enforce tribal court order,
and federal statutory authority for enforcement of tribal
court orders provides that such enforcement by BIA officer
is "subject to federal law" and enforcement violates
Petition for certiorari was filed on 12/05/2003. Petition
v. United States, Eigth Cir., 2003
WL 21543782,Tribal judge who issued temporary
restraining order excluding non-Indian from tribe's reservation
for 30 days without hearing and relying solely on uncorroborated,
unsworn petition is absolutely immune, to same extent as state
and federal court judges, from suit seeking damages for his
actions; Bureau of Indian Affairs officer and local county sheriff
are protected by absolute quasi-judicial immunity from suit
seeking damages for their enforcement of order, which was facially
-- Deference to tribal courts; Parent and child
(Law); Trials (Custody of children) -- North Dakota;
United States. Indian Child Welfare Act of 1978
U.S.C. 1901); Equality before the law - United
States; Due process of law -- United States.
*Issues:(1) Is AB, citizen of United States and North Dakota,
and Indian child as that phrase is defined under ICWA, entitled
to protections of U.S. and North Dakota Constitutions and
thus entitled to due process and equal protection afforded
other children under relevant federal and state laws concerning
protection of children, and is review of application of ICWA
to individual Indian child subject to strict scrutiny under
both equal protection and substantive due process analyses,
so that means employed must be narrowly tailored to meet compelling
governmental interest especially when matter involved government
action vis a vis individual child rather than government action
vis a vis tribe? (2) Should existing Indian family doctrine
be applied here to prevent unconstitutional application of
ICWA to facts of this case? (3) Under fair application of
ICWA to facts of this case should tribe's motion to transfer
jurisdiction have been denied because (a) mother's prior veto
of tribe's initial motion to transfer jurisdiction barred
subsequent motion to transfer jurisdiction, (b) motion was
untimely, (c) tribal court is inconvenient forum, and/or (d)
best interests of child should have been considered by state
courts? (4) Did Congress exceed its authority under Indian
commerce clause and violate 10th Amendment in enacting ICWA?
Petition for certiorari was filed on 11/17/2003. Petition
Holding below: In
Re A. B. Supreme Court of ND, 2003
ND 98. Different treatment of Indians and non-Indians
under Indian Child Welfare Act, which gives tribal
courts concurrent but presumptive jurisdiction of
child custody proceeding involving Indian child
not domiciled or residing within reservation of
child's tribe, 25
U.S.C. § 1911(b), is rationally related
to protection of integrity of Native American families
and tribes and to fulfillment of Congress's unique
guardianship obligation toward Indians, and thus
transfer of state parental termination proceeding
to tribal court on tribe's motion did not deny right
to equal protection or substantive due process of
Indian child who lived off reservation in non-Indian
foster home; Indian family exception to ICWA, under
which some courts have refused to apply ICWA when
Indian child is not being removed from existing
Indian family with significant connection to Indian
community, is contrary to plain language of ICWA,
would thwart statute's protection of tribe's interest
in its Indian children, and was effectively undermined
in Miss. Band of Choctaw Indians v. Holyfield, 490
U.S. 30 (1989); tribe's motion to transfer jurisdiction
filed seven weeks after filing of parental termination
proceeding was timely; tribal court offered to sit
in Fargo where child resided, and thus was not inconvenient
forum; best interest of child is not consideration
for threshold determination of whether there is
good cause not to transfer jurisdiction to tribal
court under ICWA; transfer is affirmed.
Citizens for Safer Communities v. Norton
Subjects: Roseville (Calif.); United States. Dept. of
the Interior; Trust or restricted lands; Casinos; Gambling
on Indian reservations -- California; Indian gaming -- California;
United Auburn Indian Community of the Auburn Rancheria of
California; United States. Indian Gaming Regulatory Act; Auburn
Indian Restoration Act.
Did court of appeals and secretary of interior correctly decide
that secretary's acceptance of 50-acre parcel of land in Placer
County, Calif., for United Auburn Indian Community's establishment
of 200,000-square-foot casino, which parcel is adjacent to
growing residential communities and within short distance
of residences and schools, with which United Auburn Indian
Community had no previous historical, cultural, temporal,
or other connection or ownership and which was remote and
separate from former Auburn Rancheria, constituted "restoration
of lands" to United Auburn Indian Community under 25
U.S.C. § 2719(b)(1)(B)(iii) such that secretary could
forgo statutory determination that using parcel for gaming
would not be detrimental to surrounding community?
Petition for certiorari was filed on 2/11/2004. Petition
of Roseville V. Norton348
F.3d 1020, Secretary of interior's approval of Auburn Indian Tribe's application
for creation of 49.21-acre reservation for use as casino on land identified
for possible reservation use in Auburn Indian Restoration Act, which restored
Auburn Indian Band to federal recognition as tribe and authorized creation of
new reservation on its behalf, qualified as "restoration of lands for an
Indian tribe that is restored to federal recognition" under Indian Gaming
Regulatory Act, even though new reservation was 40 miles from tribe's former
reservation and would be put to different use than former reservation, and thus
secretary's action was exempt from IGRA's requirement that secretary of interior,
prior to deciding that certain Indian land may be used for gaming, must find
that gaming would not be detrimental to surrounding communities and must secure
consent of state's governor.
v. United States
Subjects: Parties to actions; Indispensables; Jamul Indian
Village of California -- Claims; Sovereignty; Federally recognized
Indian tribes; Indian allotments; Remedies (Law); Land tenure.
(1) Is federally recognized Indian tribe necessary and indispensable
party to action by individual Indians to enforce their allotments
of non-tribal land pursuant to 25
U.S.C. § 345? (2) Can individual Indians be deprived
of all rights and remedies provided by 25
U.S.C. § 345, when subsequently recognized Indian
tribe falsely claims sovereignty over non-tribal land allotted
to individual Indians?
Petition for certiorari was filed on 12/18/2003. Petition
v. United States, 9th cir., 73
Fed. Appx. 913. Indian tribe that has claimed jurisdiction
over parcel of land at issue in this action since at least 1981,
and whose interest therein would be impaired if certain litigants
were declared to be beneficial owners of that land, is necessary
and indispensable party that enjoys sovereign immunity from
suit, whose interests cannot adequately be represented by United
States in this intertribal dispute, and whose absence requires
dismissal of action.
Subjects: Indian children -- United States; State courts
-- Michigan; Jurisdiction -- Michigan; Tribal courts -- Jurisdiction;
Parent and child (Law); Trials (Custody of children) -- Michigan;
Child welfare; United States. Indian Child Welfare Act of
1978; Procedure (Law).
(1) When no finding was made that custody with Indian mother
would likely cause serious physical or emotional damage to
child and, to contrary, state court granted Indian mother
liberal and unsupervised parenting time, did state court exceed
its jurisdiction and violate ICWA by (a) failing to immediately
restore full physical and legal custody of Indian child to
Indian mother when, prior to and during trial, Indian mother
expressed her desire to terminate voluntarily created limited
guardianship and regain full physical and legal custody of
Indian child, as was Indian mother's statutory right, 25
U.S.C. § 1913(b); (b) acting without jurisdiction
in violation of 25
U.S.C. § 1920 by conducting custody proceeding in
which limited guardians retained custody of Indian child after
Indian mother had expressed desire to regain her custodial
rights; (c) failing to require limited guardians to notify
Indian child's tribe of this foster care placement proceeding
and of tribe's right to intervene under 25
U.S.C. § 1912(a), which omission created jurisdictional
defect in all further proceedings; and (d) failing to require
limited guardians to introduce qualified expert testimony
to establish that active efforts had been made to avoid breakup
of Indian family as required by Section 1912(d)? (2) Did state
courts err in failing to accord natural mother's constitutional
right to make reasonable decisions as to care and custody
of her child appropriate weight and importance, as required
v. Granville, 530 U.S. 57, 68 U.S.L.W. 4458 (2000)?
Petition for certiorari was filed on 12/29/2003. Petition
denied on 3/08/04.
v. Beveridge, Mich. App, Ct., 2003
WL 198011. Provision of Indian Child Welfare Act,
U.S.C. §1912(a), that requires notification of tribe
when foster care placement of, or termination of parental rights
to, Indian child is sought is inapplicable to action in which
child's paternal grandparents, who already had temporary custody
of child pursuant to child's parents' divorce decree, sought
to modify decree in order to acquire full custody of child,
and thus mother's contention that noncompliance with ICWA's
notification provisions deprived court of jurisdiction to award
custody of child to grandparents is meritless; trial court did
not violate mother's constitutional rights by deciding it would
be in child's best interest to award full custody to paternal
grandparents, especially in light of evidence that mother had
alcohol and drug abuse problem, including recent hospitalization
for heroin overdose.
United States v. Santee Sioux Tribe of Nebraska
Indian gaming -- Class II; Indian gaming -- Class III; Gambling
on Indian reservations; Casinos -- Santee Sioux Tribe of the
Santee Reservation of Nebraska; United States. Indian Gaming
Regulatory Act; United States. Johnson Act (15
USC 1171-1178); Machinery -- Defined.
*Issues:Is Lucky Tab II machine excluded from Johnson Act's definition
of "gambling device" in 15
U.S.C. § 1171(a)(2)(B) because player becomes entitled
to receive money as result of sequence of winning and losing
pull-tabs on pre-printed paper roll inserted into machine?
Petition for certiorari was filed on 11/21/2003. Petition
v. Santee Sioux Tribe of Nebraska, 324
F. 3d. 607, Eighth cir. Lucky Tab II machine, which
dispenses, in identical order from roll as physically placed
in machine, pull-tabs from that roll, does not generate random
patterns with element of chance but is merely high-tech dispenser
of pull-tabs that also displays contents of tickets on screen
for user, and thus is not gambling device, "designed and
manufactured primarily for use in connection with gambling,
and ... by the operation of which a person may become entitled
to receive, as the result of the application of an element of
chance, any money or property," that is prohibited within
Indian country by Johnson Act, 15
U.S.C. § 1171(a)(2)(B).
Related news stories: Supreme Court Turns Down Gaming
Machine Dispute (Indianz.com)
D. Ascroft v. Seneca-Cayuga Tribe of Oklahoma, et al
Indian gaming -- Class II; Gaming -- Equipment and supplies;
United States. Indian Gaming Regulatory Act (IGRA) (25
USC 2701 et Tribe of Oklahoma; Fort Sill Apache Tribe
of Oklahoma; Northern Arapaho Tribe of Wyoming; Diamond Gaming
Corporation; National Indian Gaming seq.); United States.
Johnson Act (15
USC 1171-1178); Seneca-Cayuga Commission (U.S.).
(1) Does IGRA create implied exemption from Johnson Act
for certain gambling devices used at tribal gaming facilities
in Indian country in absence of tribal-state gaming compact?
(2) Can machine qualify as gambling device under Johnson Act
when player becomes entitled to receive money as result of
sequence of winning and losing pull-tabs on pre-printed paper
roll inserted into machine?
Petition for certiorari was filed on 11/21/2003. Petition
Holding below: Seneca
Cayuga Tribe of Oklahoma v. National Indian Gaming
Commission, U.S. Court of Appeals, Tenth cir.,
F.3d 1019. Provision of Indian Gaming Regulatory
Act classifying "the game of chance commonly
known as bingo (whether or not electronic, computer
or other technologic aids are used in connection
therewith) ... including (if played in the same
location) pull-tabs ... and other games similar
to bingo" as Class II gaming permitted in Indian
country shields Indian country users of IGRA Class
II technologic aids from liability under earlier-enacted
Johnson Act, which prohibits possession or use of
"any gambling device" within Indian country,
U.S.C. § 1175(a); provision of IGRA stating
that Johnson Act "shall not apply to any gaming
conducted under a Tribal-State compact" entered
into between "any Indian Tribe having jurisdiction
over the Indian country upon which a Class III gaming
activity is being conducted" and "a state
in which gambling devices are illegal," 25
U.S.C. § 2710(d)(3), (6), may not be read,
under canon of expressio unius est exclusio alterius,
to preclude use of otherwise legal Class II devices
in absence of tribal-state compact, particularly
in view of legislative history evincing congressional
intent that Johnson Act not preclude use of devices
in aid of games similar to bingo that are allowed
under IGRA; National Indian Gaming Commission regulation
stating that "pull tab dispensers and/or readers"
are included as IGRA Class II "electronic,
computer, or other technologic aids,"
25 C.F.R. § 502.7(a), is reasonable and
entitled to deference; machine that dispenses paper
pull-tabs from roll that is part of larger deal
containing predetermined number of randomly distributed
winning tabs, and that requires player to manually
peel back top layer of pull-tab to confirm victory
and to present tab for visual inspection to gaming
hall clerk to become entitled to winnings, is technologic
aid used in connection with playing of pull-tabs
and thus Class II IGRA gaming device exempt from
Related news stories: Appeals Court Says Game Is Legal Class
Valley Band of Pomo Indians v. California
agreements -- Coyote Valley Band of Pomo Indians
of California; Intergovernmental agreements -- California;
Indian gaming; United States. Indian Gaming Regulatory
Act (IGRA) (25
U.S.C. 2701 et seq.); Special funds; Fund accounting;
(1) Did Ninth Circuit err in holding, in acknowledged conflict
with Second Circuit, that state that has legalized some forms
of Class III gaming has no obligation to negotiate compacts
with Indian tribes regarding other forms of such gaming? (2)
To what extent, if any, may state require Indian tribe to
sacrifice core elements of its sovereignty and to subject
itself to state taxation and to state labor laws as prerequisite
to state's agreement to enter into gaming compact under IGRA?
Petition for certiorari was filed on 12/01/2003. Petition
Valley Band v. State of California, Ninth Cir.,
State's obligation under Indian Gaming Regulatory Act to negotiate
in good faith with Indian tribe with respect to Class III gaming
if "such gaming" is permitted in state does not require
state that has legalized some forms of Class III gaming to negotiate
with tribe about other forms of Class III gaming that are prohibited
in state; provisions of model gaming compact between California
and Indian tribes that establish (i) revenue sharing trust through
which gaming tribes must share gaming revenues with non-gaming
tribes, (ii) special distribution fund through which gaming
tribes must contribute gaming revenues to fund state gaming
regulatory activities, and (iii) collective bargaining and other
labor protections for workers at tribal gaming establishments
do not impose upon tribe "tax, fee, charge, or other assessment"
prohibited by Section 2710(d)(4)
of IGRA but, instead, fall within scope of Section 2710(d)(3)(C)(vii),
which authorizes compact provisions covering "subjects
that are directly related to the operation of gaming activities";
accordingly, state did not act in bad faith by refusing to enter
compact with tribe that did not include these provisions.
news stories: Supreme
Court Won't Take on Calif. Compact Dispute (Indianz.com)
Turley v. Eddy
River Indian Tribes of the Colorado River Indian Reservation,
Arizona and California -- Officials and employees; Eviction;
Joinder of parties.
(1) When considering Indian tribal officials' sovereign immunity
defense, must courts first determine scope of tribal sovereignty?
(2) When Indian tribal officials assert sovereign immunity
as defense to litigation challenging lawfulness of their actions
asserting reservation jurisdiction over lands that are (a)
outside of legislated boundaries of tribe's reservation and
(b) precluded by statute from having reservation status, must
courts first determine scope of tribal sovereignty? (3) Can
courts apply "Indian lands exception" to Quiet Title
U.S.C. § 2409a, without first determining that litigation
involves "trust or restricted Indian lands"?
Petition for certiorari was filed on 11/24/2003. Petition
v. Eddy, U.S. Court of Appeals, Ninth cir., 2003
WL 21675511. District court properly dismissed complaint against individual
officers of Indian tribe, alleging wrongful eviction from land in which tribe
claims interest, for failure to join necessary and indispensable parties--tribe
and United States--that are immune from suit.
Frank and Forest County Potawatomi Community of Wisconsin v.
Forest County, Wisconsin
(Election law); Equality before the law -- United States;
United States. Voting Rights Act of 1965; Forest County (Wis.);
Forest County Potawatomi Community of Wisconsin Potawatomi
(1) Does 10 percent rule of Brown v. Thomson apply to all
jurisdictions, regardless of size? (2) Is presumptively unconstitutional
reapportionment plan implicating fundamental right to vote
subject only to "rational basis" level of judicial
scrutiny? (3) Must voting age population, total population,
or some other measure be used in analyzing Voting Rights Act
claim, or is relevant population base political choice for
Petition for certiorari was filed on 10/13/2003. Petition
was denied on 1/12/2004.
v. Forest County, U.S. Court of Appeals, seventh cir.,
F.3d 570. Ten
percent rule of Brown
v. Thomson, 462
U.S. 835 (1983)--which held that population disparity
of greater than 10 percent creates prima facie case of discrimination
in electoral districting plan--is rebuttable, and more easily
so when districts being reviewed are both numerous and in sparsely
populated area whose residents are unevenly distributed; accordingly,
although difference between largest of sparsely populated county's
21 supervisory districts, which has 514 residents, and smallest
district, with 428 residents, is 18 percent, county's districting
does not deny equal protection of law, especially in light of
modest functions that state has assigned to board of supervisors
of remote, rural county; contention of county's Indians, who have
population majorities in two districts, that Voting Rights Act
requires redistricting to create third district in which Indians,
when combined with transient black residents of Job Corps center,
would have majority is meritless in absence of evidence that,
in supervisory elections, Indian and black voters would have same
Federation of Government Employees, AFL-CIO, et. al v. United
Subjects: Equality before the law -- United States; Contracting
out; Employee selection; United States -- Officials and employees; American
Federation of Government Employees. United States. Defense Appropriations Act.
*Issues: (1) May preference for Native American contractors
in Section 8014 of DOD Appropriations Act, which is neither
restricted to Indian tribes nor related to uniquely Indian interests,
nevertheless be upheld as tribal preference subject to rational
basis review under Morton v. Mancari, 417 U.S. 535 (1971), on
grounds that it could be applied to Indian tribes or members
of Indian tribes? (2) Is preference for Native American contractors
in Section 8014 of DOD Appropriations Act narrowly tailored
to serve compelling interest and consistent with equal protection
guarantee of Fifth Amendment?
History: Petition for certiorari was filed on 9/4/2003.
Petition was denied on 12/15/03.
Federation of Government Employees, AFL-CIO, et. al v. United
States, District of Columbia Cir., 330
F.3d 513. Section 8014(3) of 2000 Defense Appropriations
Act, which relieves Department of Defense of its general obligation
to perform most efficient and cost-effective organization analysis--which
is predicate to outsourcing work previously done by more than
10 government employees--when it contracts out work to qualified
Native American firm, is rationally related to important federal
interest in promoting economic development of federally recognized
Indian tribes and thus does not violate affected federal employees'
equal protection rights.
Court Rejects Union Claim Against Native Contract (Indianz.com)
6/09. Supreme Court Rejects Appeal of Native Preference Case
Subjects: Drunk driving; Montana; Judgments, Criminal;
Tribal courts -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.
*Issues: not yet available
History: Petition for certiorari was filed on 9/20/2003.
Petition was denied 11/10/2003.
v. Spotted Eagle, Supreme Court of Montana, 71
P.3d 1239. The Supreme Court, James C. Nelson, J.,
held that: (1) defendant's uncounselled tribal convictions for
DUI were valid at inception, and (2) tribal convictions could
be used to enhance state DUI charge to felony.
Mont. Court Accepts Tribal Court Convictions (Indianz.com)
v. Saratoga County Chamber of Commerce Inc.
Subjects: St. Regis Band of Mohawk Indians of New York;
Pataki, George E., 1945-; New York; Chamber of Commerce (Saratoga
County, New York); Sovereign immunity -- Indian Country (New
York); Intergovernmental agreements -- New York; Intergovernmental
agreements -- St. Regis Band of Mohawk Indians of New York;
Gambling on Indian reservations -- New York; Indian gaming.
*Issues:May court disregard tribal sovereign immunity in determining
if Indian tribe is indispensable party to suit that is likely
to significantly prejudice tribe's interests?
Petition for certiorari was filed on 8/19/2003.
County Chamber of Commerce v. Pataki Court of Appeals of
WL 21357342 Although sovereign immunity prevents
Indian tribe from being forced to participate in state court
proceedings, it does not require everyone else to forgo resolution
of all disputes that could affect tribe, and thus tribe is not
indispensable party to action challenging, on state constitutional
grounds, governor's authority to negotiate and sign agreement
with tribe to permit casino gaming on its reservation.
Related News Stories: Supreme Court Refuses to Hear Indian
Gambling Case (Newsday.com)
11/17; Okla. Chief Wants Land-claim Meeting with Pataki (Ithaca
Ysleta del Sur Pueblo v. Texas
Subjects: Ysleta Del Sur Pueblo of Texas; Texas; Indian
gaming -- Texas -- Law and Legislation; Gambling on Indian
reservations -- Texas; United States. Indian Gaming Regulatory
Act; Sovereignty -- Indian Country (Texas).
*Issues:(1) Does Indian Gaming Regulatory Act, instead of Pueblo's
Restoration Act, govern gaming activities on reservation lands
of Ysleta del Sur Pueblo? (2) If not, should gaming provisions
of Pueblo's Restoration Act be interpreted consistently with
California v. Cabazon Band of Mission Indians, 480 U.S. 202
(1987)? (3) If not, can federal courts require Pueblo (a)
to obtain license from Texas prior to conducting bingo in
accordance with substantive provisions of Texas state law,
and (b) to be "qualified organization" prior to
conducting bona fide carnival contests when no such requirement
exists for any other person? (4) Will Supreme Court exercise
its supervisory power to prevent grave miscarriage of justice
wrought by federal courts in derogation of this country's
trust relationship with Pueblo?
Petition for certiorari was filed on 9/23/2003. Petition
was denied on 11/3/03.
v. Ysleta del Sur Pueblo, District
Court, W.D. Texas, 220
F. Supp. 2d 668. District court did not abuse its
discretion in refusing to modify its permanent injunction, barring
Indian tribe from holding gambling activities on tribal lands,
in order to permit tribe to participate in charitable bingo,
carnival contests, and promotional player pool activities.
Tribe of Texas v. Texas
Subjects: Alabama-Coushatta Tribes of Texas; Texas; Indian
gaming; Gambling on Indian reservations -- Alabama-Coushatta
Tribes of Texas; Gambling -- Law and legislation -- Texas;
United States. Ysleta del Sur Pueblo and Alabama and Coushatta
Indian Tribes of Texas Restoration Act.
*Issues:(1) Given disapproval by this court in 1998 of hypothetical
jurisdiction, can Fifth Circuit now rely on dicta in 1994
Fifth Circuit decision--to effect that statutes restoring
Ysleta Tribe to federal status, rather than Indian Gaming
Regulatory Act, governed Ysleta Tribe's gaming activity and
that federal courts had no jurisdiction to consider Ysleta
Tribe's claims under those restoration statutes--to deny Alabama-Coushatta
Tribe's requested declaration of its gaming rights? (2) Is
remand appropriate when dicta in Ysleta del Sur Pueblo v.
Texas, now being relied upon to deny Alabama-Coushatta right
to gaming, was wrong?
Petition for certiorari was filed on 8/19/2003. Petition
was denied on 10/6/03.
below: (Unreported decision from the 5th cir.) Trial court's
ruling in favor of state, enjoining Alabama Coushatta Tribe
of Texas from conducting gaming on its lands in accordance with
Ysleta del Sur Pueblo and Alabama Coushatta Indian Tribes of
Texas Restoration Act, is affirmed on basis of Ysleta del Sur
Pueblo v. Texas, 36
F.3d 1325 (5th Cir. 1994), which construed Restoration
Act provision stating that "[a]ll gaming activities which
are prohibited by the laws of the State of Texas" are prohibited
on tribal lands of Ysleta del Sur Pueblo--which is parallel
to provision regarding Alabama Coushatta lands--to prohibit
Ysleta del Sur Pueblo from engaging in any gaming activity prohibited
by Texas law; contention that such interpretation in Ysleta
del Sur Pueblo was dicta is meritless.
Subjects: Pueblo of Santa Clara, New Mexico -- Officials and employees;
Civil rights; United States. Indian Civil Rights Act (25 USC 70 et seq.); Searches
and seizures -- Pueblo of Santa Clara, New Mexico; Property; Imprisonment --
Pueblo of Santa Clara, New Mexico.
*Issues:(1) Does Tenth Circuit decision set precedent that allows
tribes to single-out and violate nonmembers' constitutional
rights? (2) Did district court incorrectly interpret this
court's rule regarding requirement to exhaust remedies?
Petition for certiorari was filed on 6/18/2003. Petition
was denied on 10/6/03.
v. Hughes, 60
Fed. Appx. 734, 10th Cir., Plaintiffs' claims having
been resolved on merits by tribal court, plaintiffs do not satisfy
test of Dry Creek Lodge Inc. v. Arapahoe and Shoshone Tribes,
F.2d 682 (10th Cir. 1982), which recognized limited
exception to holding of Santa Clara Pueblo v. Martinez, 436
U.S. 49 (1978), that there is no private cause of action under
Indian Civil Rights Act except under ICRA's habeas corpus provision,
and thus plaintiffs' claims alleging violation of their civil
and constitutional rights as protected by ICRA were properly
dismissed for lack of subject matter jurisdiction or failure
to state claim upon which relief may be granted.
Mountain Rancheria v. American Vantage Companies
Subjects: Non-Indians; Contractors; Breach of contract;
Indian gaming; Jurisdiction; Table Mountain Racheria of California;
United States. Indian Gaming Regulatory Act (IGRA) (25 USC
2701 et seq.).
Are state law claims for breach of contract brought against
Indian tribe by private gaming management company, involving
matters integrally related to tribe's control over its gaming
operations, completely preempted by IGRA and pursuable only
in federal court?
Petition for certiorari was filed on 6/2/2003. Petition
was denied on 10/6/03.
Vantage Companies v. Table Mountain Rancheria, 126
Cal.Rptr.2d 849, Consultant's contract with Indian
tribe to provide technical assistance, training, and advice
to tribe in operation of its gaming activities, and consultant's
agreement with tribe to terminate prior contract to manage tribe's
casino, were determined by National Indian Gaming Commission
not to require approval of its chairman, and thus consultant's
state law causes of action against tribe for breach of each
contract and seeking money damages as sole remedy are not preempted
by Indian Gaming Regulatory Act, under which regulation of contracts
is limited to management contracts and agreements collateral
Subjects: Indian courts -- Navajo Nation, Arizona, New
Mexico & Utah -- Enforcement of opinions and orders.
Jurisdiction -- Navajo Nation, Arizona, New Mexico &
Utah. Comity of nations. Due process of law.
*Issues:(1) Does Navajo Nation qualify as "territory,"
or "possession," or federal independent contractor,
for purposes of 28
U.S.C. § 1738 full faith and credit and comity enforcement
of Navajo Nation orders by this court by way of extraordinary
writ of mandamus? (2) Does respondents' "unified defense"
so contradict rules of ethical representation that petitioners
are denied due process and respondents should be prohibited
from using unified defense in federal courts by extraordinary
writ of prohibition by this court?
Petition for certiorari was filed on 5/28/2003. Petition
was denied on 10/6/03.
below: Petition for writ of mandamus asking Tenth Circuit
to vacate and replace its decision upholding dismissal of certain
claims seeking enforcement of Navajo court orders and remanding
others for determination of Navajo court jurisdiction, MacArthur
v. San Juan County, Utah, 309
F.3d 1216 (2002), cert. denied, 71 U.S.L.W. 3750
(U.S. June 2, 2003) (Nos.
amounts to untimely petition for rehearing and is denied; petition
for mandamus to direct district court either to recuse or to
follow different directions than those given in Tenth Circuit's
2002 decision is denied because petitioners, who may file appeal
from any judgment adverse to them, have other adequate means
to attain relief they desire and thus are not entitled to mandamus
Subjects: Hunting on Indian reservations -- Montana; Indians
of North America Non-members of a tribe; Game laws
-- Montana; Salish & Kootenai Tribes of the Flathead Reservation,
Confederated Tribes of, Montana; Equality before the law
United States; Conflict of laws.
(1) Does state have same trust relationship with Native
Americans as does federal government? (2) Does state law that
allows tribal members to hunt wildlife within Indian reservation
while denying that same right to nontribal members who own
property within those boundaries create racial classification
that must be subjected to strict scrutiny in accordance with
Richmond, Va. v. J.A. Croson Co., 488 U.S. 469 (1989), and
Adarand Constructors Inc. v. Peña, 515 U.S. 200 (1995)?
(3) Does state law that distinguishes between tribal and nontribal
members, when tribal membership is dependent on ancestry,
create racial classification that must be subjected to strict
Petition for certiorari was filed on 5/9/2003. Petition
was denied on 10/6/03.
v. Shook (Briefs),
Mont. 347, Montana Supreme Court. Federal Indian
law is binding on state, and, therefore, state constitutional
equal protection guarantee must allow for state classifications
based on tribal membership if those classifications can rationally
be tied to fulfillment of unique federal, and consequently state,
obligation towards Native Americans; state regulation that prohibits
nontribal members from hunting big game on Indian reservations
fulfills that test by preserving wildlife population for hunting
by Native Americans, as required by treaties, and, therefore,
nontribal member could be prosecuted for illegal hunting on
Related News Stories: Hunter loses fight against law
10/10/03, Reservation hunting suit turned away (Missoulan.com)
v. United States
Subjects: Double jeopardy; Jurisdiction -- Menominee Indian Tribe of Wisconsin;
Jurisdiction -- United States; Theft; Malicious mischief.
*Issues:Does federally recognized Indian tribe, whose present
power to prosecute tribal offenses was established by act
of Congress, prosecute as sovereign separate from federal
government for purposes of dual sovereignty exception to Fifth
Amendment's double jeopardy clause?
Petition for certiorari was filed on 6/10/2003. Petition
was denied on 10/6/03.
States v. Long, 2003
7th. cir. The United States District Court for the Eastern District
of Wisconsin, Lynn Adelman, J., 183
F.Supp.2d 1106, dismissed the indictment. Government
appealed. Congress's 1973 restoration of Native American tribe's
sovereign status is not mere delegation of federal power to
tribe and, therefore, tribe is separate sovereign for purposes
of dual sovereignty exception to Fifth Amendment's double jeopardy
clause; person prosecuted in tribal court could be subsequently
prosecuted in federal court for same offense.
v. United States
Subjects: Fuel -- Taxation; Confederated Tribes and Bands
of the Yakama Indian Nation of the Yakima Reservation, Washington
-- Taxation; Confederated Tribes and Bands of the Yakama Indian
Nation of the Yakima Reservation, Washington -- Treaties --
Canons of construction favoring Indian.
(1) Are previous opinions of this court, applying canons
of treaty construction to construe language "the right
of taking ... in common with citizens of the territory"
in Article III, Paragraph 2, of Treaty
with Yakamas of 1855 (12 Stat. 951), and finding that
"right ... in common with" language reserved to
Yakama specific and special rights to take fish, in direct
conflict with opinions of Ninth Circuit in this case finding
that identical language of same treaty article provided Yakamas
with no special and specific rights as to travel on public
highways? (2) Is opinion below, finding that terms "in
common with" and "right to travel" in Article
III provide Yakamas no rights, in direct conflict with this
court's opinion in Washington
v. Washington State Passenger Fishing Vessel Ass'n, 443 U.S.
658 (1979), construing same language to grant specific
rights to Yakama Indians? (3) Does reasoning of opinion of
this court in Tulee
v. Washington, 315 U.S. 682 (1942), construing
"in common with" language of Article III, Paragraph
2, of Treaty
with Yakama of 1855 (12 Stat. 951) as reserving to Yakama
tribal members right to take fish without payment for fees
for that right, conflict with court of appeals' ruling that
identical language of Article III, Paragraph 1, of treaty
regarding right of Yakama Indians to haul tribally produced
goods to market on public highways free of federal diesel
and heavy vehicle use tax, provided no similar exemption?
(4) Is court of appeals' opinion requiring that Indian treaty
must contain "express exemptive language" on its
face before it may qualify Indian for federal tax exemption
in direct conflict with prior rulings of this court in Choate
v. Trapp, 224 U.S. 665 (1912), Squire
v. Capoeman, 351 U.S. 1 (1956), and Chickasaw
Nation v. United States, 534 U.S. 84, 70 U.S.L.W. 4020 (2001),
holding that such language need only be "clearly expressed,"
with all doubtful terms and expressions construed in favor
Petition for certiorari was filed on 4/22/2003. Petition
was denied on 10/6/03.
v. United States. 9th cir. 302
F.3d 1074. Language in 1855 Yakama Treaty stating
that "free access from the [reservation] to the nearest
public highway, is secured to [the Yakama]; as also the right
in common with citizens of the United States, to travel upon
all public highways," does not provide express exemptive
language from which court can discern intent to exempt Yakama
from generally applicable federal heavy vehicle and federal
diesel fuel taxes, and thus, member of federally recognized
Indian tribe who lives and works on reservation is subject to
federal heavy vehicle and diesel fuel taxes for hauling timber
that was cut on reservation to off-reservation markets using
diesel fuel trucks that exceed 55,000 pounds gross vehicle weight.
A service of the National Indian Law Library of the Native
American Rights Fund
*Organization by status.
Petition for certiorari granted
Petition for certiorari pending
Petition for certiorari denied
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