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Indian Law Bulletins  |  U.S. Supreme Court  |  2005-2006 Term

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Last updated: July 5, 2006

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


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Three Indian law-related cases have been decided by the U.S. Supreme Court in the 2005-2006 term.

Gonzales v. Centro Espirita Beneficiente Uniao do Vegetal
Docket No. 04-1084
Briefs & Pleadings
Oral Argument Transcripts

Subjects: União do Vegetal -- Rituals; United States; United States. Controlled Substances Act; Hoasca; Hallucinogenic plants.

*Issues: Does 1993 Religious Freedom Restoration Act require government to permit importation, distribution, possession, and use of Schedule I hallucinogenic controlled substance, when Congress has found that substance has high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate international treaty?

Holding: (from Westlaw) The Supreme Court, Chief Justice Roberts, held that: (1) Government had burden to demonstrate compelling interest, and (2) Government failed to demonstrate compelling interest in barring sect's sacramental use of hoasca.
Affirmed and remanded.

History: Petition for certiorari was filed on 2/10/2005. Petition was granted on 4/18/05. Argued on 11/1/05. Decided 2/21/06.

*Holding below: Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 10th Cir. (en banc). In light of Congress's implicit determination in Religious Freedom Restoration Act that harm prevented and public interest served by protecting citizen's free exercise of religion must be given controlling weight, barring government's proof, by specific evidence, that its interests are more compelling, district court did not abuse its discretion in preliminarily enjoining enforcement of Controlled Substances Act against church's use of hoasca (hallucinogenic tea) in religious ceremonies, based on its finding that scale tipped in church's favor given closeness of parties' evidence regarding safety of hoasca use and its potential for diversion.

Related News Stories: Trust relationship not convincing to Supreme Court (Indianz.com) 2/22/06. Supreme Court weighs use of hallucinogen in worship (AP) 11/2/05. Use of Hallucinogen to Get U.S. Supreme Court Scrutiny (Bloomberg.com) 4/18/05. Supreme Court to Hear Tea Case (AP) 4/18/05.

Joan Wagnon, Secretary, Kansas Department of Revenue, et al., v. Prairie Band Potawatomi Nation
2005 WL 1520600
Docket No. 04-1740
Briefs & Pleadings

Subjects: Motor vehicles -- Registration and transfer -- Prairie Band of Potawatomi Indians, Kansas; Motor vehicles -- Registration and transfer -- Kansas; Jurisdiction.

*Issues: (1) Should interest-balancing test in White Mountain Apache Tribe v. Bracker be applied to preempt state's off-reservation enforcement of its motor vehicle code? (2) Should court abandon White Mountain Apache interest-balancing test in favor of preemption analysis based on principle that Indian immunities are dependent upon congressional intent?

History: Petition for certiorari was filed on 06/23/2005. Judgment vacated and remanded to the 10th Cir. 12/12/05.

*Holding below: Prairie Band Potawatomi Nation v. Wagnon, 402 F.3d 1015, 10th Cir. District court did not abuse its discretion when it permanently enjoined Kansas from further application and enforcement of its motor vehicle registration and titling laws against federally recognized Indian tribe, its members, and any persons who operate or own vehicle properly registered and titled under tribe's motor vehicle code, district court havingappropriately balanced interests at issue in accordance with White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), and determined that federal and tribal interests in promoting strong tribal economic development, self-sufficiency, and self-governance preempt state's asserted interest in public safety.

Related News Stories: Supreme Court takes action on tribal car tag case (Indianz.com) 12/12/05.

Wagnon (Formerly Richards) v. Prairie Band Potawatomi Nation
2005 WL 3285050
Docket No. 04-631
Briefs & Pleadings
Oral Argument Transcripts

Subjects: Motor fuels -- Taxation -- Kansas; Prairie Band of Potawatomi Indians, Kansas -- Taxation; Kansas; Distributors (Commerce) -- Kansas; Exclusive and concurrent legislative powers -- United States; Sovereignty -- Prairie Band of Potawatomi Indians, Kansas; Kansas. Dept. of Revenue; Preemption of state law -- Kansas.

*Issues: (1) When state taxes receipt of fuel by nontribal distributors, manufacturers, and importers, and such receipt occurs off-reservation, does interest balancing test in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), apply because fuel is later sold by tribe to final consumers? (2) Should court abandon White Mountain Apache interest balancing test in favor of preemption analysis based on principle that Indian immunities are dependent upon congressional intent? (3) Did court of appeals err in applying White Mountain Apache interest balancing test by, inter alia, placing dispositive weight on fact that tribally owned gas station derives income from largely nontribal patrons of tribe's nearby casino?

Holding: (from Westlaw) The Supreme Court, Justice Thomas, held that:
(1) Chickasaw categorical bar on imposition of legal incidence of state excise tax on a tribe or on tribal members for sales made inside Indian country without congressional authorization was not applicable;
(2) Bracker interest-balancing test for preemption of state taxation of activity on an Indian reservation, which applies when a state asserts taxing authority over the conduct of non-Indians engaging in activity on a reservation, was not applicable;
(3) tax was not invalid on theory that it was impermissibly discriminatory because the state exempted from taxation fuel sold or delivered to all other sovereigns; and
(4) tax was valid and posed no affront to tribe's sovereignty.

History: Petition for certiorari was filed on 11/05/2004. Petition was granted on 2/28/05. Argument on 10/3/05. Decided 12/6/05.

*Holding below: Prairie Band of Potawatomi Nation v. Richards, 379 F.3d 979, 10th Cir. Kansas tax on fuel supplied to Indian tribe for its sole, on-reservation gas station by non-Indian distributors is preempted by federal law because, although state has interest in raising revenue, tax is incompatible with and outweighed by strong tribal and federal interests, including (i) tribal and federal interests in tribal self-sufficiency and economic development, including efforts to attract non-Indians to tribe's on-reservation casino, of which fuel sales, 73 percent of which are to casino patrons and employees, are integral and essential part, and (ii) tribe's need to raise fuel revenues to construct and maintain, without state assistance, reservation roads, bridges, and related infrastructure, including access road to casino from interstate highway, to which tribe's fuel revenue is dedicated by tribal law.

Related News Stories: Supreme Court ruling favors taxing gas on Indian reservations (Farmington Daily Times) 12/09/05. Court backs Kansas in gasoline tax case involving tribe. (Kansas City Star) 12/7/05. Supreme Court rules states can tax fuel sold on Indian reservations. (NativeTimes.com) 12/6/05. Court backs fuel tax on Indian lands (Mercury News) 12/6/05. Lawyers fear Kansas may win tax case. (Indian Country Today) 10/14/05. Supreme Court will hear Potawatomi fuel tax case. (Native American Times) 2/28/05.

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Currently, one petition has been granted and judgment vacated this term.

Lingle v. Arakaki
Docket No. 05-988
Briefs & Pleadings

Subjects: Government -- Programs -- Hawaii; Native Hawaiians; Hawaii. Office of Hawaiian Affairs; Taxation -- Hawaii; Equality before the law -- Hawaii; Finance -- United States; Standing to sue -- United States; Trust lands -- United States; Public lands -- United States; Leases -- United States.

*Issues: Do state taxpayers have standing to challenge actions of state government or state agencies that expend, or involve use of, state taxpayer dollars, simply because they pay taxes to state?

History: Petition for certiorari was filed on 2/02/2006. The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the U.S. Court of Appeals for the Ninth Circuit for further consideration in light of DaimlerChrysler Corp. v. Cuno, 547 U.S. ___, 74 U.S.L.W. 4233 (2006). The Chief Justice took no part in the consideration or decision of this petition.

*Holding below: Arakaki v. Lingle, 423 F.3d 954, 9th Cir. State taxpayers have standing to bring lawsuit claiming that appropriation of state revenue to support state programs that limit benefits to "native Hawaiians and Hawaiians" violates 14th Amendment's equal protection clause.

Related News Stories: U.S. Supreme Court intervenes in Native Hawaiian case. (Indianz.com) 6/13/06.

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Petition for certiorari has been filed and is pending in 6 Indian law cases this term.

Means v. Navajo Nation
Docket No. 05-1614
Briefs & Pleadings

Subjects: Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota -- Members; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe; Equality before the law -- United States; Due proecess of law -- United States; Criminal jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe.

*Issues: (1) Can Congress lawfully vest Indian Nations, which are not subject to U.S. Constitution, with criminal jurisdiction over nonmember Indians who are citizens of United States--but not over nonmember non-Indians--without violating equal protection and due process clauses of Fifth Amendment? (2) Can Indian tribes exercise criminal jurisdiction over nonmembers, but only as long as they are Indians, without violating equal protection and due process provisions of Indian Civil Rights Act? (3) Can Indian tribes exercise criminal jurisdiction over nonmember Indians, who are citizens of United States, outside of Constitution without violating due process of law? (4) Did Congress, by amending Indian Civil Rights Act to provide Indian tribes with criminal jurisdiction over nonmember Indians, abrogate Navajo Treaty of 1868, which explicitly provides for federal jurisdiction over intertribal offenses? (5) Does Congress possess power to grant criminal jurisdiction to Indian tribes over nonmembers under Indian commerce clause, art. 1, § 8, cl. 3, even though tribes are not bound by Constitution?

History: Petition for certiorari was filed on 6/16/2006.

*Holding below: Means v. Navajo Nation, 432 F.3d 924, 9th Cir. Under 1990 amendments to Indian Civil Rights Act, Indian tribe may exercise its inherent sovereign judicial power in criminal cases, for crimes committed on tribe's reservation, against anyone of Indian ancestry who is also Indian by political affiliation, which at very least includes anyone who is enrolled member of any tribe but does not include anyone who is merely racially Indian; equal protection clause is not violated by permitting tribe to prosecute its own members and members of other tribes, but not anyone else, for crimes committed on reservation, because Indian tribal identity is political rather than racial, and recognizing criminal jurisdiction of tribal courts over Indians enrolled in other tribes, who might not otherwise be subject to any criminal jurisdiction, is rationally related to Indian self-government in area in which rapid and effective tribal response may be needed; facial due process challenge has no force in this case, because Indian Civil Rights Act and Navajo Bill of Rights confer on defendant in this case all rights that he would enjoy under U.S. Constitution; conditions of 1868 treaty between Navajo Nation and United States for rendition of "bad" person have not been fulfilled in this case, and thus tribe need not turn over to United States for prosecution Indian defendant who is enrolled member of different tribe.

Bruner v. Oklahoma ex rel. Oklahoma Tax Commission
Docket No. 05-1470
Briefs & Pleadings

Subjects: Mines and mineral resources -- Taxation -- Oklahoma; Mines and mineral resources -- Indian Country (Oklahoma); Indian allotments; Restricted lands; Five Civilized Tribes; Due process of law; United States. Constitution; Law -- United States.

*Issues: (1) Is federal law that subjects minerals produced on restricted allotted lands of Five Civilized Tribes after April 26, 1931, to all taxes, state and federal, unconstitutional in context of case at bar? (2) How could Oklahoma and lower federal courts totally and without explanation ignore solemn contract between Miller Bruner, full-blood Creek Indian, and United States? (3) Is statute of limitations tolled as to restricted (non-competent) Indians as determined by Oklahoma Court of Appeals but denied by Tenth Circuit Court of Appeals in Bruner v. United States, on Dec. 21, 2005, but not decided in U.S. District Court for Northern District of Oklahoma?

History: Petition for certiorari was filed on 5/15/2006.

*Holding below: Bruner v. State of Oklahoma, 130 P.3d 767, Court of Appeals of Oklahoma. Tax exemption granted to Indian tribes by original agreements between Creek Nation and United States provided exemption for only 21-year period, which expired by time Congress passed Act of May 10, 1928, which declared that "all minerals, including oil and gas, produced on or after April 26, 1931, from restricted allotted lands of members of the Five Civilized Tribes in Oklahoma, or from inherited restricted lands of full-blood Indian heirs or devisees of such lands, shall be subject to all State and Federal taxes of every kind and character the same as those produced from lands owned by other citizens of the State of Oklahoma," and thus taxpayer, although his grandfather was full-blood Creek Indian, is not entitled to refund of gross production and petroleum excise taxes paid to Oklahoma for 1989 through 1994; in any event, taxpayer's refund application filed with Oklahoma Tax Commission is time-barred.

Dark-Eyes v. Connecticut Commissioner of Revenue Services
Docket No. 05-1464
Briefs & Pleadings

Subjects: Income tax -- Connecticut; Mashantucket Pequot Tribe of Connecticut -- Members -- Taxation -- Connecticut; United States. Mashantucket Pequot Indian Claims Settlement Act; Indian Country (U.S.) -- Defined; Dependent Indian communities -- Defined..

*Issues: Were lands identified as "private settlement lands" in Connecticut Indian Land Claims Settlement Act, 25 U.S.C. §§ 1751-1760, set aside in that act for Mashantucket Pequot Tribal Nation, and did they become Indian country upon purchase by Mashantucket Pequot Tribal Nation?

History: Petition for certiorari was filed on 5/15/2006.

*Holding below: Dark-Eyes v. Commissioner of Revenue Services, 887 A.2d 848 , Supreme Court of CT. Enrolled member of federally recognized Mashantucket Pequot Tribe was properly subjected to state income tax on income she derived from sources within tribe's reservation in 1996-98 while living on property that was owned by tribe and designated as "private settlement lands" by Mashantucket Pequot Indian Claims Settlement Act, but that was not part of reservation, had not been set aside for use by Indians as Indian land within meaning of claims settlement act (because it had not been purchased with "settlement funds" appropriated under act to buy settlement lands but had instead been purchased by tribe with nonsettlement funds), and thus was not Indian country until taken into trust by federal government in August, 1998.

South Dakota v. Dept. of Interior
Docket No. 05-1428
Briefs & Pleadings

Subjects: Oacoma (S.D.); Lyman County (S.D.); South Dakota; Trust lands -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; United States. Dept. of the Interior; United States. Indian Reorganization Act; Acquisition of property -- South Dakota; Delegation of powers.

*Issues: Is 25 U.S.C. § 465, which allows secretary of interior to acquire, in trust, "in his discretion," any amount of "lands" at any location in nation, on or off reservation, for purpose of "providing land for Indians," unconstitutional delegation of legislative power?

History: Petition for certiorari was filed on 5/08/2006.

*Holding below: State of South Dakota v. United States Department of the Interior, 423 F.3d 790, 8th. Cir. Provision of Indian Reorganization Act that authorizes secretary of interior, "in his discretion," to acquire "any interest in lands ... within or without existing reservations ... for the purpose of providing land for Indians," 25 U.S.C. § 465, is not unconstitutional delegation of legislative authority when viewed in light of statutory aims and legislative history of IRA, whose goals of providing lands sufficient to enable Indians to achieve self-support and ameliorating damage resulting from prior government policy sufficiently narrow delegation and guide secretary's discretion in deciding when to take land into trust for Indians.

 

Morris v. Tanner
Docket No. 05-1285
Briefs & Pleadings

Subjects: Criminal jurisdiction -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana -- Application -- Non-members of a tribe; Automobile driving -- On Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Criminal actions arising on Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Traffic violations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Leech Lake Band (Minn.) -- Members; Minnesota Chippewa Tribe -- Members; United States. Indian Civil Rights Act; Due process of law -- United States.

*Issues: (1) Does 25 U.S.C. § 1301(2) violate fundamental constitutional right of American Indians, who are citizens of United States, to equal protection guaranteed by Fifth Amendment by subjecting nonmember Indians, but no other similarly situated nonmembers of different race, to criminal prosecution and punishment by Indian tribes whose judicial proceedings are not constrained by Constitution? (2) Does same statute violate fundamental right of U.S. citizens to due process guaranteed by Fifth Amendment by subjecting them to criminal prosecution and punishment by extra-constitutional sovereigns, Indian tribes, within borders of United States but unconstrained by Constitution, which sovereigns, because of their racially and ethnically exclusive nature, deny them right of full and equal participation in their political life?

History: Petition for certiorari was filed on 4/6/2006.

*Holding below: Morris v. Tanner, 2005 WL 3525607, 9th. Cir. Indian Civil Rights Act's 1990 amendments, under which tribal court jurisdiction in criminal cases extends to all Indians who are enrolled members of federally recognized tribe, and not just Indians who are members of prosecuting tribe, do not violate equal protection or due process principles, and thus district court properly entered summary judgment for Confederated Salish and Kootenai Tribes in whose tribal court criminal speeding charges are pending against enrolled member of Minnesota Chippewa Tribe who challenged constitutionality of 1990 amendments.

Utah v. Shivwits Band of Paiute Indians
Docket No. 05-1160
Briefs & Pleadings

Subjects: Jurisdiction -- United States; United States. Bureau of Indian Affairs; Leases -- Shivwits Band of Paiutes; Police power -- Utah; Trust lands -- Shivwits Band of Paiutes; Land use -- Shivwits Band of Paiutes.

*Issues: Is Congress's standardless grant of complete discretion to executive branch officer to acquire land "for Indians" unconstitutional delegation of legislative power?

History: Petition for certiorari was filed on 3/09/2006.

*Holding below: Shivwits Band of Paiute Indians v. State of Utah, 428 F.3d 966, 10th Cir.
Under binding circuit precedent, United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999), Section 465 of Indian Reorganization Act, 25 U.S.C. § 465, which authorizes secretary of interior "to acquire ... any interest in lands ... for the purpose of providing land for Indians," such land to be held "in trust" for tribe or individual "for which the land is acquired," provides standards for exercise of secretary's discretion and thus is not unconstitutionally standardless delegation of legislative power.

Related News Story: Third court decision favors land-into-trust process (Indianz.com) 11/11/05.

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Petition for certiorari has been denied in 27 Indian law cases and one judgment vacated so far this term.

Arrietta v. United States
Docket No. 05-10770
Briefs & Pleadings

Subjects: Indian Country (U.S.) -- Defined; Criminal actions arising in Indian Country (U.S.) -- Pueblo of Pojoaque, New Mexico; Assault and battery -- Pueblo of Pojoaque, New Mexico; Indians of North America -- Violence against.

*Issues: not available from USLW

History: Petition for certiorari was filed on 5/01/2006. Petition was denied on 6/5/06.

*Holding below: United States v. Arrieta, 436 F.3d 1246, 10th. Cir. (from Westlaw) The Court of Appeals, McConnell, Circuit Judge, held that:
(1) road maintained by county, lying between two parcels of land owned by non-Indians, but within exterior boundaries of Pojoaque Pueblo, was Indian country, and
(2) district court did not have authority to depart downward from agreed upon specific sentence.
Affirmed in part, reversed in part, and remanded.

Smith v. Salish Kootenai College
Docket No. 05-10357
Briefs & Pleadings

Subjects: Traffic fatalities -- On Indian reservations -- Umatilla Reservation, Confederated Tribes of the, Oregon; Umatilla Reservation, Confederated Tribes of the, Oregon -- Members; Jurisdiction -- Umatilla Reservation, Confederated Tribes of the, Oregon -- Application -- Non-Indians; Salish Kootenai College; Evidence (Law).

*Issues: not available from USLW

History: Petition for certiorari was filed on 4/10/2006. Petition was denied on 6/19/06.

*Holding below: Smith v. Salish Kootenai College, 434 F.3d 1127, 9th. Cir. (from Westlaw) On rehearing en banc, the Court of Appeals, Bybee, Circuit Judge, held that tribal courts had subject matter jurisdiction.

Arakaki v. Lingle
Docket No. 05-1128

Subjects: Government -- Programs -- Hawaii; Native Hawaiians; Hawaii. Office of Hawaiian Affairs; Taxation -- Hawaii; Equality before the law -- Hawaii; Finance -- United States; Standing to sue -- United States.

*Issues: (1) Do cross-petitioners have standing as beneficiaries of Hawaii's ceded lands trust to challenge federal laws that require present trustee (state of Hawaii) to breach its fiduciary duties (i.e., duty of impartiality and duty not to comply with illegal trust terms) and to sue Hawaii state officials to enjoin them from breaching same fiduciary duties? (2) Do cross-petitioners have standing as state taxpayers to challenge federal laws that require state of Hawaii to engage in racial discrimination and to sue to enjoin state officials from implementing federally mandated racial discrimination? (3) Do cross-petitioners have standing as state taxpayers (in addition to right to challenge direct appropriations of tax revenues to Office of Hawaiian Affairs, properly upheld by court of appeals) to sue to enjoin state officials from racial discrimination in other ways that increase their state tax burden such as: by issuing general obligation bonds or by transfers characterized as "settlement" or "trust revenues" or by lease of public lands for nominal consideration?

History: Petition was filed on 3/03/06. Petition was denied on 6/12/06.

*Holding below: Arakaki v. Lingle 423 F.3d. 954, 9th Cir. State taxpayers have standing to bring lawsuit claiming that appropriation of state tax revenue to support state Office of Hawaiian Affairs programs that limit benefits to "native Hawaiians" or "Hawaiians" violates 14th Amendment's equal protection clause, but they lack standing to sue federal government, and thus district court properly dismissed all claims to which United States is either named or indispensable party, including claims challenging appropriation of tax revenue to Department of Hawaiian Home Land/Hawaiian Homes Commission, claims challenging settlement of past claims against OHA, claims challenging issuance of bonds and all other spending that does not originate in tax revenue, and claims challenging eligibility requirements with respect to DHHL/HHC leases.

Related News Stories: U.S. Supreme Court intervenes in Native Hawaiian case. (Indianz.com) 6/13/06.

Mattaponi Indian Tribe, et al. v. Virginia
Docket No. 05-1141
Briefs & Pleadings

Subjects: Virginia. State Water Control Board; Permits -- Virginia -- Newport News; Treaty at Middle Plantation(1677); King William Reservoir project (Va.); Reservoirs -- Virginia; Dams -- Virginia; State recognized Indian tribes -- Mattaponi Indian Reservation (Virginia); Treaty rights -- Mattaponi Indian Reservation (Virginia); Mattaponi Indian Reservation (Virginia) -- Exclusion, Right of; Trials (Trespass); Evidence; Sovereign immunity -- Virginia.

*Issues: Should obligations imposed by Indian treaty with prior sovereign be enforceable as matter of federal law under supremacy clause?

History: Petition for certiorari was filed on 3/06/2006. Petition was denied on 6/12/06.

*Holding below: Alliance to save the Mattaponi Indian v. Commonwealth of Virginia, Department of Environmental Quality, 270 Va. 423, Supreme Court of VA. Provision of U.S. Constitution's supremacy clause that "all treaties made ... under the Authority of the United States, shall be the supreme Law of the Land" is inapplicable to 1677 treaty between Indian tribe and British crown; given this court's rejection of contention, advanced under various theories, that such treaty is federal law, lower court's holding that tribe's treaty claims arise under Virginia law has become law of case; absent waiver of sovereign immunity, state and its agents are not subject to suit under state law on tribe's claims that state agency's issuance of permit to build reservoir that would require flooding of "buffer zone" surrounding reservation and endanger tribe's fishing and hatchery operations violates its 1677 treaty.

Cowan v. Tohono O'Odham Nation
Docket No. 05-1273
Briefs & Pleadings

Subjects: Sovereign immunity -- Tohono O'odham Nation of Arizona; Employees, Dismissal of -- Tohono O'odham Nation of Arizona; Jurisdiction -- Arizona.

*Issues: Native American tribe's sovereign immunity bars lawsuit by former tribal employee alleging that she was fired without cause, that tribe failed to reimburse her for her out-of-pocket expenses, and that tribe refused to compensate her for her unused annual leave; contention that tribe waived its immunity by failing to appoint grievance committee pursuant to its personnel policies and procedures manual when employee filed grievance is meritless, because any waiver of tribal immunity must be clear and unequivocal.

History: Petition for certiorari was filed on 4/3/2006. Petition was denied on 6/05/06.

*Holding below: ( copy of the unreported decision is not yet available) Cowan v. Tohono O'Odham Nation, No. 2 CA-CV 05-0024, Ct Appeals AZ, Div. 2. (Aug. 4, 2005) (1) Did Arizona Court of Appeals err in holding that tribe has immunity from suit? (2) Did Arizona Superior Court err in holding that Arizona court lacked subject matter jurisdiction over petitioner's suit?

Seneca Nation of Indians v. New York
Docket No. 05-905

Subjects: Seneca Nation of New York; Tonawanda Band of Seneca Indians of New York; New York (State); New York State Thruway Authority; Conveyancing; Grand Island (N.Y. : Island); Niagara River (N.Y. and Ont.); Treaties -- Ratification; United States. Trade and Intercourse Act; Land tenure; Interest (Ownership rights); Indian title -- New York (State); Treaty of Canandaigua (1794).

*Issues: (1) Did Senecas hold title to islands in Niagara River under Treaty of Canandaigua, 7 Stat. 44 (Nov. 11, 1794), so that New York's purchase of islands from Senecas in 1815 without federal approval violated Non-Intercourse Act, 25 U.S.C. § 177? (2) Do this court's precedents require that ambiguous treaty terms be read liberally in favor of Indian parties, notwithstanding state non-party's later claim of pre-existing rights to land at issue and invocation of United States v. Minnesota, 270 U.S. 181 (1926)? (3) Should treaties made between Indian tribes and British crown before Constitution be interpreted according to same rules applicable to treaties between Indian tribes and United States after Constitution, such that title to Indian land may not be extinguished without plain and unambiguous expression of intent by sovereign?

History: Petition for certiorari was filed on 1/17/2006. Petition was denied on 6/05/06.

*Holding below: Seneca Nation of Indians v. New York, 382 F.3d 245. 2nd Cir. Although New York's 1815 purchase of Niagara River islands from Seneca Nation of Indians did not comply with Non-Intercourse Act, which bars conveyances by Indians to non-Indians unless made or ratified by Congress, New York already had title to islands when it ostensibly purchased them from Senecas and thus conveyance was not subject to Non-Intercourse Act requirements, Seneca title having been extinguished by 1764 treaties between tribe and Great Britain, and New York having acquired title upon defeat of British in Revolutionary War; 1794 Treaty of Canandaigua did not divest New York of title to islands and return it to Senecas.

Related News Stories: U.S. Supreme Court rejects another tribal land claim (Indianz.com) 6/6/06

Salinas v. Lamere
Docket No. 05-1189
Briefs & Pleadings

Subjects: Jurisdiction -- California; Civil jurisdiction -- California; United States. Public Law 280; Tribal membership -- Pechanga Band of Luiseno Mission Indians of the Pechanga Reservation, California.

*Issues: (1) Does Pub. L. No. 280 confer subject matter jurisdiction on California courts in civil suit by individual Native Americans that seeks injunctive relief under California law against other individual Native Americans to prevent them from violating constitution and laws of their tribe? (2) Does decision below conflict with federal court decisions whose holdings are reflected in lower court's prior decision in Turner v. Martire, 82 Cal. App. 4th 1042, 99 Cal. Rptr. 2d 587 (Cal. App. 2000)?

History: Petition for certiorari was filed on 3/15/2006. Petition was denied on 5/22/06.

*Holding below: Lamere v. Superior Court, 31 Cal.Rptr.3d 880, Court of Appeal, CA. Pub. L. No. 280, 28 U.S.C. § 1360, which provides that certain states, including California, "shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country ... to the same extent that such State has jurisdiction over other civil causes of action," to extent that it grants civil jurisdiction, was primarily intended to redress lack of adequate Indian forums for resolving private legal disputes between reservation Indians and between Indians and other private citizens, and thus does not extend to suit by alleged members of California Indian tribe challenging their disenrollment, which is not private legal dispute between reservation Indians, but goes to heart of tribal sovereignty; despite naming of individual members of tribe's enrollment committee as defendants, dispute remains essentially between plaintiffs and tribe.

Cayuga Indian Nation of New York v. Pataki
Docket No. 05-982
Briefs & Pleadings

Subjects: Pataki, George E., 1945-; Cayuga Nation of New York -- Claims; Damages -- Cayuga Nation of New York; Eviction -- Cayuga Nation of New York; Trespass; New York (State); Laches -- United States.

*Issues: Did Second Circuit err in interpreting City of Sherrill v. Oneida Indian Nation of New York to require "dismissal ab initio" of claims that are timely under 28 U.S.C. § 2415 and are brought by Indian tribes and United States to obtain monetary damages from state for lands taken in violation of Nonintercourse Act and federal treaties?

History: Petition for certiorari was filed on 2/03/2006. Petition was denied on 5/15/06.

*Holding below: Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266, 2nd Cir. Based on City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 73 U.S.L.W. 4242 (2005), which held that equitable doctrines, such as laches, acquiescence, and impossibility, can be applied to Indian land claims in appropriate circumstances even when claims are legally viable and within limitations period, laches bars Indian tribe's possessory claims, first filed in 1980, to land that it ostensibly ceded to New York by 1795 and 1807 treaties that, because they were never ratified by federal government, are invalid under Nonintercourse Act; tribe's inability to secure relief on its possessory land claims forecloses its claims for damages based on trespass; United States's 1992 intervention in suit based on events that occurred 200 years ago to assert interests of tribe, rather than its own interests, falls within heartland of exception to rule against subjecting United States to laches defense.

Related News Stories: Cayuga land claim case ends abruptly; it's over (Syracuse Post-Standard) 6/14/06. Supreme Court drops Cayuga land claim case. (Indian Country Today) 5/19/06. Moves made to dismiss all land claims (Syracuse Post-Standard) 5/17/06. U.S. Supreme Court refuses to clarify tribal claims. (Indianz.com) 5/16/06. Officials see demise of Oneidas' claim (Syracuse Post-Standard) 5/16/06 Land-claim legal ground expected to stay shaky (Syracuse Post-Standard). 5/10/06. Cayugas respond to petition (Finger Lake Times) 4/19/06

Chayoon v. Sherlock
Docket No. 05-10180
Briefs & Pleadings

Subjects: Mashantucket Pequot Gaming Enterprise -- Employees; Employees, Dismissal of -- Mashantucket Pequot Tribe of Connecticut; Casinos -- Mashantucket Pequot Tribe of Connecticut; Gambling on Indian reservations; Indian gaming -- Mashantucket Pequot Tribe of Connecticut; United States. Family and Medical Leave Act of 1993; Sovereign immunity -- Mashantucket Pequot Tribe of Connecticut.

*Issues: not available from USLW

History: Petition for certiorari was filed on 3/29/2006. Petition was denied on 5/15/06.

*Holding below: Chayoon v. Sherlock, 877 A.2d. 4, Appellate Ct. of CT, (from Westlaw) The Appellate Court, Bishop, J., held that:
(1) Indian tribe did not waive its sovereign immunity, and
(2) allegation that casino employees violated FMLA was insufficient to strip employees of the protections of tribal immunity.
Affirmed.

United States v. Pataki
Docket No. 05-978

Subjects: Pataki, George E., 1945-; Cayuga Nation of New York -- Claims; Damages -- Cayuga Nation of New York; Eviction -- Cayuga Nation of New York; Trespass; New York (State); Laches -- United States.

*Issues: Did court of appeals err in holding that Indian tribes and United States were barred by laches from suing New York for money damages as compensation for state's acquisition of tribal lands in violation of federal law?

History: Petition for certiorari was filed on 2/03/2006. Petition was denied on 5/15/06.

*Holding below: Cayuga Indian Nation of New York v. Pataki, 413 F.3d 266, 2nd Cir. Based on City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 73 U.S.L.W. 4242 (2005), which held that equitable doctrines, such as laches, acquiescence, and impossibility, can be applied to Indian land claims in appropriate circumstances even when claims are legally viable and within limitations period, laches bars Indian tribe's possessory claims, first filed in 1980, to land that it ostensibly ceded to New York by 1795 and 1807 treaties that, because they were never ratified by federal government, are invalid under Nonintercourse Act; tribe's inability to secure relief on its possessory land claims forecloses its claims for damages based on trespass; United States's 1992 intervention in suit based on events that occurred 200 years ago to assert interests of tribe, rather than its own interests, falls within heartland of exception to rule against subjecting United States to laches defense.

Related News Stories: Moves made to dismiss all land claims (Syracuse Post-Standard) .Land-claim legal ground expected to stay shaky (Syracuse Post-Standard) 5/10/06

Doe v. Mann
Docket No. 05-815
Briefs & Pleadings

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; California -- Jurisdiction; United States. Public Law 280; Exclusive jurisdiction; Jurisdiction -- Tribes -- California; Jurisdiction -- United States -- States.

*Issues: Does Pub. L. 280, 18 U.S.C. § 1162 and 28 U.S.C. § 1360, deprive Indian tribes in Pub. L. 280 states of their exclusive jurisdiction to conduct involuntary child dependency proceedings involving Indian children domiciled on reservation, notwithstanding Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963?

History: Petition for certiorari was filed on 12/19/2005. Petition was denied on 5/1/06.

*Holding below: Doe v. Mann, 415 F.3d 1038, 9th Cir. Child custody proceeding relating to Indian child residing on reservation is "civil cause of action between Indians or to which Indians are parties" and involves civil laws "that are of general application to private persons" so as to fall within jurisdiction of California courts under 28 U.S.C. § 1360(a) and thus within exception to exclusive jurisdiction over child custody matters granted to tribal courts under Indian Child Welfare Act, 25 U.S.C. § 1911(a).

Related News Stories: U.S. Supreme Court won't hear Indian child welfare case (Indianz.com) 5/2/06, 9th Circuit rules against tribe in California ICWA case. (Indianz.com) 7/20/05.

Mann v. Doe
Docket No. 05-951
Briefs & Pleadings

Subjects: Parent and child (Law); Trials (Custody of children) -- California; Indian children -- Legal status, laws, etc.; Child welfare; United States. Indian Child Welfare Act of 1978; California -- Jurisdiction; United States. Public Law 280; Exclusive jurisdiction; Jurisdiction -- Tribes -- California; Jurisdiction -- United States -- States.

*Issues: Do 28 U.S.C. § 1331 and Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963, authorize lower federal courts to review and invalidate final state court judgments in child custody proceedings involving Indian children, or is such review barred by Rooker-Feldman doctrine?

History: Petition for certiorari was filed on 12/19/2005. Petition was denied on 5/1/06.

*Holding below: Doe v. Mann, 415 F.3d 1038, 9th Cir. Although Rooker-Feldman doctrine ordinarily leaves federal district courts without subject matter jurisdiction to hear appeal that effectively seeks review of state court judgment, Indian Child Welfare Act, at 25 U.S.C. § 1914, which authorizes specified aggrieved parties to petition "any court of competent jurisdiction" to invalidate certain state court child custody proceedings concerning foster care placement or termination of parental rights, expresses Congress's intent that federal courts be empowered to invalidate state court judgments in this limited arena and, to that extent, counteracts application of Rooker-Feldman doctrine in this case, in which parent challenges state judgment terminating her parental rights.

Related News Stories: U.S. Supreme Court won't hear Indian child welfare case (Indianz.com) 5/2/06, 9th Circuit rules against tribe in California ICWA case. (Indianz.com) 7/20/05.

Beams v. Norton
Docket No. 05-900

Subjects: Trusts and trustees -- United States; Indian preference in hiring -- United States; United States. Bureau of Indian Affairs; United States. Wheeler-Howard Act; Marijuana -- Law and legislation -- United States; Trust lands -- Indian Country (U.S.).; Indian reservations -- United States; United States. Civil Rights Act of 1964 – Title 7; United States. Age Discrimination in Employment Act of 1967.

*Issues: (1) Will U.S. government honor its trust responsibility to Native American people? (2) Will U.S. government honor Wheeler Howard Act, also known as Indian Reorganization Act, in its Indian preference regulations in employing Indian people in Bureau of Indian Affairs? (3) Does U.S. government endorse illegal cultivation of marijuana on Indian trust lands on Indian reservations? (4) Does U.S. government endorse cussing of employees by supervisors as part of official business?

History: Petition for certiorari was filed on 11/29/05. Petition was denied on 2/27/06.

*Holding below: Beams v. Norton, 141 Fed. Appx. 769, 10th Cir. Dismissal of individual's claims under Indian Preference Act, and summary judgment on his claims under Title VII of 1964 Civil Rights Act and Age Discrimination in Employment Act, are affirmed for reasons stated by district court, which ruled, inter alia, that Indian Preference Act does not confer private right of action.

Wilbur v. Locke
Docket No. 05-740

Subjects: Salish Trust; Trading Post at March Point; Cigarettes -- Taxation -- Washington (State); United States. Tax Injunction Act; Cigarette vendors -- Swinomish Indians of the Swinomish Reservation -- Taxation; Contracts; Standing to sue; Parties to actions -- Swinomish Indians of the Swinomish Reservation; Intergovernmental agreements -- Swinomish Indians of the Swinomish Reservation; Intergovernmental agreements -- Washington (State)..

*Issues: (1) Does First Amendment petition clause guarantee of right to seek judicial redress of grievances require that Rule 19(b) be construed and applied in manner that will avoid dismissal of suit for failure to join indispensable party if effect of such dismissal would be to deprive plaintiff, and every member of public, of judicial forum in which asserted constitutional or statutory violations could be litigated? (2) Is Ninth Circuit's adherence to rule that, in all cases in which plaintiff is challenging validity of contract, every party to that contract is indispensable party whose absence requires dismissal of suit pursuant to Rule 19(b), inflexible rule in conflict with this court's decisions in Provident Tradesmens Bank & Trust v. Patterson, 390 U.S. 102 (1968), and National Licorice Co. v. NLRB, 309 U.S. 350 (1940)? (3) Is it error to grant Rule 19(b) dismissal of plaintiff's suit against state officials on grounds that Indian tribe is indispensable party when (a) tribe knows that lawsuit is pending, (b) interests of tribe and state officials are identical, (c) tribe refuses to waive sovereign immunity and to consent to being party defendant and thus cannot be joined as party, and (d) tribe files pleadings in lawsuit in support of positions taken by state officials and urges court to dismiss lawsuit because tribe is indispensable party?

History: Petition for certiorari was filed on 12/06/2005. Petition was denied on 2/21/06.

*Holding below: Wilbur v. Locke, 423 F.3d 110, 9th Cir. In lawsuit against state officials seeking to invalidate compact between state and Indian tribe relating to taxation of cigarette sales on tribe's reservation, tribe has interest in retaining valuable benefits granted by compact that cannot be represented by state and is thus necessary party whose sovereign immunity, which has been neither waived nor abrogated, precludes its joinder, thus requiring dismissal of suit under Fed.R.Civ.P. 19(b), after balancing factors set forth therein, for lack of indispensable party; contention that First Amendment's petition clause prohibits, or at least weighs against, dismissal of this action for nonjoinder is meritless.

Shobar v. California
Docket No. 05-707

Subjects: Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Indian gaming -- Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Gambling on Indian reservations -- California; Non-Indians -- Officials and employees -- Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Intergovernmental agreements -- Santa Ynez Band of Chumash Mission Indians of the Santa Ynez Reservation, California; Intergovernmental agreements -- California; Concerned Citizens of Santa Ynez Valley (Calif.); Parties to actions; United States. Indian Gaming Regulatory Act; California; Federal question; Jurisdiction -- United States.

*Issues: (1) Does IGRA empower governor of affected state to negotiate terms of tribal-state compact that violate constitutional rights of non-Indian workers in Indian casinos and businesses? (2) Is Tenth Circuit's interpretation of IGRA Section 2710(d)(3) in Pueblo of Santa Ana v. Kelly, 104 F.3d 1546 (10th Cir. 1997), correct? (3) Are Indian tribes necessary or indispensable parties to lawsuit brought by non-Indian citizens against their government for declaratory relief to interpret their rights and state's duties under tribal-state compact?

History: Petition for certiorari was filed on 11/30/2005. Petition was denied on 1/23/06.

*Holding below: Shobar v. California, 134 Fed. Appx. 184, 9th Cir. District court properly dismissed non-Indian casino workers' claim against state of California, regarding whether Indian tribal employer may participate in state workers' compensation system or establish its own system pursuant to tribal-state compact, because no private cause of action exists to enforce state-tribal compact under either Indian Gaming Regulatory Act or terms of compact itself; even if employees could state claim, suit could not proceed because Indian tribe is indispensable party under Fed.R.Civ.P. 19, and tribal sovereignty precludes tribe's joinder.

Peabody Western Coal Company v. Equal Employment Opportunity Commisssion
Docket No. 05-353
Briefs & Pleadings

Subjects: United States. Equal Employment Opportunity Commission; United States. Civil Rights Act of 1964; Discrimination in employment; Indian preference in hiring; Navajo Nation, Arizona, New Mexico & Utah -- Members; Peabody Western Coal Company; Parties to actions.

*Issues: May plaintiff join as involuntary defendant under Fed.R.Civ.P. 19 party that plaintiff is prohibited from suing directly?

History: Petition for certiorari was filed on 09/15/2005. Petition was denied on 1/23/06.

*Holding below: Equal Opportunity Commission v. Peabody Western Coal Company, 400 F.3d 774. 9th Cir. Despite contentions that tribal sovereign immunity and Equal Employment Opportunity Commission's inability to bring direct suit against Navajo Nation under Title VII of 1964 Civil Rights Act preclude joinder, EEOC may join Navajo Nation in its action alleging that employer that operates coal mines under leases from Nation that require employment preference be given to Navajos violated Title VII by refusing to hire non-Navajo Native Americans, because (i) Nation is necessary party, (ii) EEOC seeks no affirmative relief against Nation, (iii) tribal sovereign immunity does not apply in action by EEOC, and (iv) circuit precedent, which is consistent with U.S. Supreme Court's clarification regarding complete relief, other circuits' joinder rulings, and purpose and text of Fed.R.Civ.P. 19, does not require that there be direct cause of action against party to be joined if joinder is for sole purpose of effecting complete relief between parties.

Patterson v. New York
Docket No. 05-550

Subjects: Reserved fishing rights --Tuscarora Nation of New York; Treaty rights --Tuscarora Nation of New York; Treaty of Canandaigua (1794); Land tenure -- Seneca Nation of New York; Ice fishing -- New York (State ) -- Niagara County; Wilson-Tuscarora State Park (N.Y.); Fishery law and legislation -- New York (State); Tuscarora Nation of New York -- Members.

*Issues: (1) Are Tuscarora Nation's fishing rights reserved in 1794 Treaty of Canandaigua wholly derived from and dependent upon continued ownership of lands by Seneca Nation? (2) Could Tuscarora Nation's fishing rights reserved in 1794 Treaty of Canandaigua be divested by implication by Seneca Nation in agreement to which Tuscarora Nation was not party?

History: Petition for certiorari was filed on 10/25/2005. Petition was denied on 1/9/06.

*Holding below: People v. Patterson, 5 N.Y.3d 91, Court of Appeals of NY. Seneca Indians surrendered their ownership of land at issue in this case in 1797, and thus, because 1794 Treaty of Canandaigua did not grant members of Tuscarora Indian Nation separate usufructuary fishing rights in Seneca lands independent of Seneca's possessory interest in land, members of Tuscarora Nation do not now have fishing rights in land, and member of Tuscarora Nation may be fined by New York for ice fishing on land previously held by Seneca's without proper tag in violation of state law.

Lummi Nation v. Samish Indian Tribe
Docket No. 05-445
Briefs & Pleadings

Subjects: Samish Indian Tribe, Washington; Lummi Tribe of the Lummi Reservation, Washington; Treaty rights -- Samish Indian Tribe, Washington; Fishing rights -- Samish Indian Tribe, Washington; Washington (State); Federal recognition of Indian tribes -- Samish Indian Tribe, Washington.

*Issues: (1) Does change in law constitute "extraordinary circumstances" to allow reopening 25-year-old final judgment pursuant to Fed.R.Civ.P. 60(b)(6)? (2) Is relief available under Fed.R.Civ.P. 60(b)(6) for alleged misconduct of party in separate proceeding more than one year after judgment in this case? (3) Does barring petitioners from participating in administrative proceedings and litigation on grounds that those proceedings will not affect their treaty rights deny petitioners' right to due process as result of Ninth Circuit decision below?

History: Petition for certiorari was filed on 10/03/2005. Petition was denied on 1/9/06.

*Holding below: Samish Indian Tribe v. State of Washington, 394 F.3d 1152,
9th Cir. Although federal recognition is not necessary for exercise of treaty fishing rights by signatory tribe, it is sufficient condition for exercise of those rights, and is also determinative of issue of tribal organization, and thus district court that in 1979 held that Samish tribe was not entitled to treaty fishing rights because it had not maintained organized tribal structure abused its discretion in denying, in 2002, tribe's Fed.R.Civ.P. 60(b)(6) motion for relief from 1979 judgment, which motion was based on extraordinary circumstance of tribe's having obtained federal recognition in 1996.

Skokomish Indian Tribe v. United States
Docket No. 05-434
Briefs & Pleadings

Subjects: Skokomish Indian Tribe of the Skokomish Reservation, Washington; United States. Federal Power Act; Law -- Washington (State); Tacoma (Wash.); Skokomish Indian Tribe of the Skokomish Reservation, Washington -- Treaties; Tacoma Public Utilities (Tacoma, Wash.); Cushman Hydroelectric Project (Tacoma, Wash.); Hydroelectric power plants; Public lands; Floods; Dams; Fisheries -- Protection -- Skokomish Indian Tribe of the Skokomish Reservation, Washington; Fishes -- Migration.

*Issues: Whether congressionally-ratified treaty that has been held to provide implied right of action against states and their instrumentalities, allows cause of action for damages against municipality alleged to have knowingly and without congressional or state authorization taken nearly one-half of water flowing through reservation and thus destroyed substantial portion of off- and on-reservation treaty-protected fisheries?

History: Petition for certiorari was filed on 10/03/2005. Petition was denied on 1/9/06.

*Holding below: Skokomish Indian Tribe v. United States, 410 F.3d 506, 9th Cir. Indian tribe's suit for damages against city and public utility stemming from hydroelectric project's flooding of Indian land, silting of river, and blocking of fish migration in alleged violation of tribe's treaty rights is not cognizable under treaty, which lacks language supporting damages claims against nonparties, and may not be brought by tribe or by individual tribal members under 42 U.S.C. § 1983.

Dalton v. Pataki
Docket No. 05-368

Subjects: Intergovernmental agreements -- Tribes -- New York; Intergovernmental agreements -- New York; Governors -- New York -- Rights and responsibilities; United States. Indian Gaming Regulatory Act; Indian gaming -- New York; Gambling on Indian reservations -- New York; Separation of powers -- New York; New York. Constitution; Video lottery terminals.

*Issues: (1) In enacting Indian Gaming Regulatory Act ("IGRA"), did--and, if so, could--Congress empower states to pass laws that were otherwise in direct violation of Bill of Rights of their own Constitutions? (2) If Bill of Rights of state's Constitution prohibits commercial gambling but allows limited forms of charitable gaming, does IGRA nevertheless empower or, indeed, require such state to pass law permitting Indian tribes to engage in commercial gambling?

History: Petition for certiorari was filed on 09/15/2005. Petition was denied on 11/28/05.

*Holding below: Dalton v. Pataki, 5 N.Y.3d 243, Court of Appeals of New York. Under Indian Gaming Regulatory Act, "Class III gaming," which is most heavily regulated type of gaming and includes casino gambling, may be conducted on Indian land only in state that otherwise "permits such gaming for any purpose by any person, organization, or entity," and thus, because New York allows some forms of Class III gaming for certain charitable purposes, such gaming may lawfully be conducted on Indian land in New York despite provision of New York Constitution that, subject to specific exceptions, prohibits commercial gambling.

Karr v. Pataki
Docket No. 05-361

Subjects: United States. Indian Gaming Regulatory Act; United States. Congress -- Powers and duties; State governments -- United States -- Powers and duties; Intergovernmental agreements; Indian gaming -- Class II -- United States; Indian gaming -- Class III -- United States; Gambling on Indian reservations -- United States; California v. Cabazon.

*Issues: (1) Whether Congress exceeded its power when--to promote tribal economic interests--it chose Indian Gaming Regulatory Act's, 25 U.S.C. 2701 et seq. ("IGRA") compacting process, which requires States alone to bear substantial expense and burdens in negotiation of and entry into Tribal-State gaming compact that would permit tribes to conduct megabillion dollar commercialized casino gaming--despite such action by State and its officials being in defiance of century old prohibition on such gaming contained in people's Constitution and their Bill of Rights? (2) Whether IGRA expands powers of executive and legislative branches of State government beyond their enumerated powers, so that these branches of government could enter into Tribal-State casino gaming compact--despite their action being in defiance of powers they possess under State Constitution? (3) Whether courts misperceive qualified non-brightline rule of California v. Cabazon, 480 U.S. 202 (1987) when they hold that because State permits very limited charitable Class III gaming it must, under IGRA, allow tribes to conduct large-scale commercialized Class III casino gaming--despite IGRA's express legislative history that Cabazon was only to be applied to Class II gaming and charitable gaming of any sort applies only to justify Class II gaming?

History: Petition for certiorari was filed on 09/15/2005. Petition was denied on 11/28/05.

*Holding below: Dalton v. Pataki, 5 N.Y.3d 243, Court of Appeals of New York. Under Indian Gaming Regulatory Act, "Class III gaming," which is most heavily regulated type of gaming and includes casino gambling, may be conducted on Indian land only in state that otherwise "permits such gaming for any purpose by any person, organization, or entity," and thus, because New York allows some forms of Class III gaming for certain charitable purposes, such gaming may lawfully be conducted on Indian land in New York despite provision of New York Constitution that, subject to specific exceptions, prohibits commercial gambling.

Nakai v. United States
Docket No. 05-6713

Subjects: Indian jurors; Fair trial; United States. Federal Bureau of Investigation; Trials (Murder); Testimony; Evidence (Hearsay).

*Issues: (not available)

History: Petition for certiorari was filed on 9/26/2005. Petition was denied on 10/31/05.

*Holding below: United States v. Nakai, 413 F.3d 1019, 9th Cir. (From Westlaw) The Court of Appeals, Noonan, Circuit Judge, held that:
(1) fact that only 6.1 percent of jurors who reported for jury trial were Native American did not deprive defendant of a fair representation of the community;
(2) FBI agent's purported testimony about statements by defendant to law enforcement investigators would be hearsay;
(3) submission of conspiracy jury instruction was harmless error; and
(4) evidence was sufficient to prove that shooting victim was alive before defendant shot him.
Affirmed.

In re Kanon'ke:haka Kaianereh'ko:wa Kanon'ses:neh
Docket No. 05-165

Subjects: Constitutional law; Separation of powers; Oneida Nation of New York; Saint Lawrence County (N.Y.); New York (State); St. Regis Band of Mohawk Indians of New York.

*Issues: Do constitutional checks and balances preclude final order by court below terminating indigenous constitutional title on basis of error of law alone that federal law precludes constitutional law, rather than other way around?

History: Petition for certiorari was filed on 08/02/05. Petition was denied on 10/11/05.

*Holding below: . Court determines sua sponte that it lacks jurisdiction over this appeal because final order has not been issued by district court as contemplated by 28 U.S.C. § 1291, and thus appeal is dismissed.

Longie v. Spirit Lake Tribe
Docket No. 05-5132

Subjects: Quiet title actions; Spirit Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux Tribe) -- Members; Spirit Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux Tribe); Federal question; Jurisdiction -- United States; Mandamus.

*Issues: not available

History: Petition for certiorari was filed on 05/11/2005. Petition was denied on 10/3/05.

*Holding below: Longie v. Spirit Lake Tribe , 400 F.3d 586, 8th Cir. The Court of Appeals, Wollman, Circuit Judge, held that:
(1) court lack federal question jurisdiction, and
(2) court lacked mandamus jurisdiction. Affirmed.

Wyoming Saw Mills, Inc. v. United States
Docket No. 04-1175
Briefs & Pleadings

Subjects: Medicine Wheel National Historic Landmark (Wyo.); Wyoming Sawmills; United States. Forest Service; United States. National Forest Management Act of 1976; Historic preservation -- Planning; Freedom of religion -- United States; United States. Constitution. 1st Amendment; Standing to sue.

*Issues: (1) Does timber company have Article III standing to challenge, as violation of establishment clause, U.S. Forest Service decision to manage 50,000 acres of national forest as "sacred site" because of "a resurgence of Native American spiritualism and [the area's] religious importance to American Indians," when timber company is: (a) denied opportunity to bid for timber sales within that area, and (b) "directly affected" by management of area as "sacred site"? (2) Did U.S. Forest Service violate establishment clause when it decided to manage 50,000 acres of national forest as "of religious importance to American Indians" and excluded all human activity but their own from that "sacred area"?

History: Petition for certiorari was filed on 03/02/2005. Petition was denied on 10/3/05.

*Holding below: Wyoming Sawmills Inc. v. United States Forest Service
383 F.3d 1241, 10th Cir. Timber company's claim that U.S. Forest Service's plan to consult with federal, state, and local agencies and Native American groups to minimize impact of agency actions on historical resources and traditional cultural uses in 18,000-acre area surrounding Native American sacred landmark deprives company of opportunity to bid on future timber sales is not redressable by favorable court decision because any future sales are within agency's discretion, and thus company lacks standing to assert establishment clause challenge to plan.

Related News Stories: See the Becket Fund for religious Liberty Web site, Supreme Court will not hear sacred site challenge (Indianz.com) 10/4/05.

Delaware Tribe of Indians v. Cherokee Nation of Oklahoma
Docket No. 04-1368
Briefs & Pleadings

Subjects: Federal recognition of Indian tribes -- Delaware Tribe of Indians, Oklahoma; Restorations, Political -- Delaware Tribe of Indians, Oklahoma; Cherokee Nation of Oklahoma; United States. Dept. of the Interior; United States. Federally Recognized Indian Tribe List Act.

*Issues: (1) Did court of appeals err in holding that this court's decisions in Cherokee Nation v. Journeycake and Delaware Indians v. Cherokee Nation necessarily determined that Delaware Tribe of Indians abandoned its organized tribal status in 1867 agreement with Cherokee, which holding conflicts with this court's more recent declaration in Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), that "[d]espite their association with the Cherokees, these Indians ... have over the years maintained a distinct group identity, and they are today a federally recognized tribe"? (2) Did court of appeals err in giving no deference to interpretation of 1867 agreement made by secretary of interior regarding Delaware Tribe's status, and in refusing to consider effect of post-1867 relations between Delaware Tribe and United States despite secretary's express reliance on legislative action and administrative practice to confirm her interpretation? (3) When secretary determined in 1996, on record following full administrative review with notice and opportunity for all affected parties to be heard, that 1979 letter issued by subordinate official limiting federal relations with Delaware Tribe was erroneous and should be withdrawn, and direct federal relations restored, did court of appeals err in holding that 1994 Federally Recognized Indian Tribe List Act and federal acknowledgment procedures of 25 C.F.R. Part 83 prevented secretary from so correcting that error?

History: Petition for certiorari was filed on 04/11/2005. Petition was denied on 10/03/05.

*Holding below: Cherokee Nation of Oklahoma v. Norton, 389 F.3d 1074, 10th Cir. Department of Interior's 1996 decision to grant federal recognition to Delaware Tribe of Indians as tribal entity was improper interpretation of 1867 agreement between Delaware Tribe and Cherokee Nation and contrary to rulings in Cherokee Nation v. Journeycake, 155 U.S. 196 (1894), and Delaware Indians v. Cherokee Nation, 193 U.S. 127 (1904), that Delaware Tribe and its members became incorporated into Cherokee Nation under such agreement; agency's decision also violated Section 103(3) of Federally Recognized Indian Tribe List Act, and its use of "retract and declare" procedure in recognizing tribe was arbitrary and capricious in violation of Administrative Procedure Act, because agency impermissibly elected not to follow procedures set out in 25 C.F.R. Part 83 for recognizing Indian tribe and did not even properly waive application of such procedures.

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