Home

Indian Law Bulletins  |  U.S. Supreme Court  |  2008-2009 Term

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


A note about links used in this document

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

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


2008-2009 Supreme Court Term: October 2008 - July 2009

Last Updated: June 29, 2009

The 2008-2009 term has closed.


See Cases by Status


Three cases of importance to Native Americans were decided by the U.S. Supreme Court in the 2008-2009 term.

United States v. Navajo Nation
Briefs & Pleadings
Docket No. 07-1410
Oral Argument Preview (Cornell University)

Subjects: Navajo Nation, Arizona, New Mexico & Utah; United States. Tucker Act; Breach of trust -- United States; Coal mines and mining -- On Indian reservations; Mining leases; United States. Indian Mineral Leasing Act of 1938; United States. Indian Mineral Leasing Act; United States. Surface Mining Control and Reclamation Act.

*Issues: (1) Is holding that United States breached fiduciary duties in connection with Navajo coal lease amendments foreclosed by United States v. Navajo Nation? (2) If Navajo did not foreclose question, did court of appeals properly hold that United States is liable as matter of law to Navajo Nation for up to $600 million for secretary's actions in connection with his approval of amendments to Indian mineral lease based on several statutes that do not address royalty rates in tribal leases and common law principles not embodied in governing statute or regulation?

The Supreme Court Held:
The Tribe's claim for compensation fails. None of the sources of law cited by the Federal Circuit and relied upon by the Tribe provides any more sound a basis for its lawsuit than those analyzed in Navajo I.
(a) Navajo I did not definitively terminate the Tribe's claim. Because the Court in that case did not analyze statutes other than the IMLA, the IMDA, and §399, it is conceivable, albeit unlikely, that another relevant statute might have provided a basis for the suit. However, Navajo I's reasoning-particularly its instruction to "train on specific rights-creating or duty-imposing statutory or regulatory prescriptions," 537 U. S., at 506-left no room for that result based on the sources of law relied on below.
(b) Lease 8580 was not issued under §635(a), so the Tribe cannot invoke that law as a source of money-mandating duties. Section 635(a) authorizes leases only for terms of up to 25 years, renewable for up to another 25 years. In contrast, the IMLA allows "terms not to exceed ten years and as long thereafter as minerals are produced in paying quantities." §396a. Mirroring the latter language, Lease 8580's indefinite term strongly suggests that it was negotiated and approved under the IMLA. This conclusion is not refuted by §635(a)'s saving clause or by testimony that coal leasing was a centerpiece of the Rehabilitation Act's program.
(c) Also unavailing is the argument that the Secretary violated §638's requirement that he follow the Tribe's recommendations in administering the "program authorized by this subchapter." The word "program" refers back to §631, which directs the Secretary to undertake "a program of basic improvements for the conservation and development of the [Tribe's] resources" and lists various projects to be included in the program. The statute certainly does not require the Secretary to follow recommendations of the Tribe as to royalty rates under coal leases executed pursuant to another Act.
(d) Title 30 U. S. C. §1300(e) is irrelevant. That provision applies only "[w]ith respect to leases issued after" the statute was enacted in 1977. Lease 8580 was issued in 1964; §1300(e) is therefore inapplicable. (e) The Government's "comprehensive control" over Indian coal, alone, does not create enforceable fiduciary duties. The ITA limits cognizable claims to those arising under, inter alia, "the ... laws ... of the United States," 28 U. S. C. §1505, and Navajo I reiterated that the analysis must begin with "specific rights-creating or duty-imposing statutory or regulatory prescriptions," 537 U. S., at 506. If a statute or regulation imposes a trust relationship, then common-law principles are relevant in determining whether damages are available for breach of the duty, but the Tribe cannot identify a specific, applicable, trust-creating statute or regulation that the Government violated, so trust principles do not come into play here. 501 F. 3d 1327, reversed and remanded.

History: Petition for certiorari was filed on 5/13/2008. Petition was granted on 10/1/08. Argued 2/23/09. Decided 4/6/09.

*Holding below: Navajo Nation v. United States, 501 F.3d 1327. Indian tribe is entitled to judgment on its Indian Tucker Act claim against United States for breach of its trust duties related to lease of tribe's lands for coal mining to third party; although United States v. Navajo Nation, 537 U.S. 488, 71 U.S.L.W. 4146 (2003), held that 1938 Indian Mineral Leasing Act and its implementing regulations do not constitute substantive source of law required to establish such claim, network of other statutes and regulations cited by tribe, including 1950 Navajo-Hopi Rehabilitation Act, 1977 Surface Mining Control and Reclamation Act, and 1983 Federal Oil and Gas Royalty Management Act, are reasonably amenable to interpretation mandating right of recovery in damages against government, under Indian Tucker Act, for violating its common law fiduciary trust duties of care, candor, and loyalty, and duties imposed by such statutory network, and thus provide required substantive source of law.

Related News Stories: Court again denies Navajo coal claims (UPI.com) 4/6/09. Obama response awaited in sacred site case (Indianz.com) 3/23/09. The Navajo Nation case, which the Supreme Court may soon review, and how it reveals the complex balance envisioned by the Religious Freedom Restoration Act (Findlaw) 2/17/09. Navajo coal royalty case heads to Supreme Court (Forbes) 2/23/09. Government files first brief in Navajo trust case (Indianz.com) 12/3/08. Supreme Court to hear Navajo Nation trust case (Indianz.com) 10/1/08. Bush seeks review of long-running Navajo trust case (Indianz.com) 5/19/08

Hawaii v. Office of Hawaiian Affairs
2009 WL 814889
Briefs & Pleadings
Docket No. 07-1372
Oral Argument Preview (Cornell University)

Subjects: Office of Hawaiian Affairs; Land titles – Registration and transfer -- Maui (Hawaii); Land titles -- Registration and transfer -- Hawaii Island (Hawaii); Transfer (Law); Public lands -- Hawaii; Trust lands -- Hawaii; Housing and Community Development Corporation of Hawaii.

*Issues: Does symbolic resolution to acknowledge 100th anniversary of Jan. 17, 1893, overthrow of Kingdom of Hawaii, in which Congress acknowledged and apologized for United States' role in that overthrow, strip Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land--29 percent of total land area of state and almost all of land owned by state--unless and until it reaches political settlement with native Hawaiians about status of that land?

History: Petition for certiorari was filed on 4/29/2008. Petition was granted on 10/1/08. Oral argument set for 2/25/2009. Decided 3/31/09.

*Holding below: Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawai'i, 77 P.3d 884. In action opposing state Housing and Community Development Corporation of Hawaii's efforts in 1990s to transfer various parcels of ceded lands, including Leiali'i parcel, to private entrepreneurs for purpose of residential development, trial court's ruling declaring that state was authorized to alienate ceded lands from public lands trust is vacated, and, in light of Apology Resolution enacted by Congress, which, along with related state legislation, gave rise to state's fiduciary duty to preserve corpus of public lands trust--specifically, ceded lands--until such time as unrelinquished claims of native Hawaiians have been resolved, case is remanded with instructions to issue order granting plaintiffs' request for injunction against sale or other transfer to third parties of Leiali'i parcel and any other ceded lands from public lands trust until claims of native Hawaiians to ceded lands have been resolved.

Related News Stories: Supreme Court backs Hawaii in land dispute. (NY Times) 3/31/09. Regrets only? Native Hawaiians insist U.S. apology has a price. (WSJ.com) 3/31/09. Land, power and money at stake in Hawaii's ceded land case now before the U.S. Supreme Court (Hawaii Reporter) 10/13/08. Supreme Court to hear Native Hawaiian case (Indianz.com) 10/1/08

Carcieri v. Kempthorne
2009 WL 436679
Briefs & Pleadings
Docket No. 07-526

Subjects: Narragansett Indian Tribe of Rhode Island; United States. Dept. of the Interior; Land into trust -- Narragansett Indian Tribe of Rhode Island -- Rhode Island -- Charlestown; Trust lands -- Narragansett Indian Tribe of Rhode Island -- Rhode Island -- Charlestown; Narragansett Indian Tribe of Rhode Island -- Housing; Rhode Island; United States. Indian Reorganization Act; Rhode Island Indian Claims Settlement Act; United States. Administrative Procedure Act; United States. Constitution.

Summary of the opinion from USLW: The Indian Reorganization Act, 25 U.S. C. §479, permits the Secretary of the Interior to acquire land and hold it in trust to provide "land for Indians" only for a tribe that was under federal jurisdiction when the statute was enacted in 1934, and not for tribes subsequently recognized by the federal government, because the statute defines "Indian" as "members of any recognized Indian tribe now under Federal jurisdiction[.]"

*Issues: (1) Does Indian Reorganization Act empower secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934? (2) Does act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land preclude secretary from creating Indian country there? (3) Does providing land "for Indians" in Indian Reorganization Act establish sufficiently intelligible principle upon which to delegate power to take land into trust?

History: Petition for certiorari was filed on 10/18/2007. Petition was granted on 2/25/08. Oral argument scheduled for 11/03/08. Oral argument on 11/3/08. (transcript) Decided 2/24/09.

*Holding below: Carcieri v. Kempthorne, 497 F.3d 15. Secretary of interior's interpretation of Indian Reorganization Act's definition of "Indian," which includes "all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction" and their descendants who were residing within boundaries of any Indian reservation on June 1, 1934, 25 U.S.C. § 479, to cover members of tribes that were recognized and under federal jurisdiction at time request for trust acquisition is made, rather than as of June 18, 1934, enactment of statute, is reasonable, consistent with department's prior interpretations, and entitled to deference, and thus includes Rhode Island tribe first recognized in 1983 for whom secretary, under 25 U.S.C. § 465, took into unreserved trust for tribe's benefit 32-acre parcel of Rhode Island land in 1998; 1978 Rhode Island Indian Claims Settlement Act, which provided that "[e]xcept as otherwise provided in this [act], the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island," 25 U.S.C. § 1708(a), by its terms applied only to 1800 acres of "settlement lands" specified in act, did not implicitly repeal secretary's authority under 28 U.S.C. § 465 to take other Rhode Island lands under trust for tribes, and thus did not preclude 1998 reservation of lands in trust for tribe; Section 465's direction that land be acquired "for the purpose of providing land for Indians" has specific meaning in light of failure of allotment policy and congressional rejection of assimilation as goal, and thus does not violate nondelegation doctrine as lacking intelligible principle for execution.

Related News Stories: Supreme Court redifinestribal and federal understandings of IRA. (New America Media) 2/25/09. In U.S. Supreme Court ruling , Narragansett Indian Tribe loses fight for sovereignty over 31-acre parcel in Charlestown. (projo.com) 2/25/09. Top court ruling poses obstacle to Mashpee Wampanoag casino efforts. (SouthCoasttoday.com) 2/24/09. High court rules for R.I. in tribal land case (PBN.com) 2/24/09. Court rules for state in American Indain land case (Washington Post) 2/24/09. High Court hears land-into-trust , fiduciary duty, 'ceded land" cases. (McClatchy-Tribune) 1/14/09. Supreme Court hears Native land case (Native Times) 11/12/08. Supreme Court takes on first Indian la case of term (Indianz.com) 11/4/08. Supreme Court hears case over American Indian Land (AP) 11/3/08. Supreme Court hears American Indian land case (AP) 11/3/08. Supreme Court to rule on Indian land (CBS News) 11/2/08. Supreme Court will rule on Narragansett dispute with Rhode Island (AP) 2/25/08.


Back to Top


No cases were left pending after the end of the 2008-2009 term.

 

Back to Top


No petitions for writ of certiorari were left pending in the 2008-2009 term.

 

Back to Top


25 petitions for writ of certiorari were denied in the 2008-2009 term.

Stratman v. Salazar
Briefs & Pleadings
Docket No. 08-863

Subjects: Grazing; Leases; United States. Alaska Native Claims Settlement Act; Alaska Native corporations -- Defined; Tribes -- Defined; Lesnoi Village (aka Woody Island); Alaska Native villages - Land tenure.

*Issues: Did Ninth Circuit impermissibly invalidate prior congressional enactment by failing to apply canons of statutory construction relating to repeals by implication, and by construing "plain language" of Alaska National Interest Lands Conservation Act Section 1427 as exempting Leisnoi from Alaska Native Claims Settlement Act's village eligibility provisions, and mooting petitioner's action, without regard to Section 1427's legislative history, and contrary to Congress' actual intent?

History: Petition for certiorari was filed on 1/05/09. Petition was denied on 6/29/09.

*Holding below: Stratman v. Leisnoi, 545 F.3d 1161. In enacting Section 1427 of Alaska National Interest Lands Conservation Act, which directs secretary of interior to "convey ... the surface estate of all of the public lands on Afognak Island" to joint venture made up of "Koniag Deficiency Village Corporations, and which defines such corporations explicitly to include Woody Island's village corporation (Leisnoi Inc.), Congress showed its intent to treat Leisnoi as eligible village corporation, thereby effectively ratifying secretary's earlier certification of Woody Island as native village under Alaska Native Claims Settlement Act, with result that challenge by plaintiff seeking to enjoin secretary from issuing lands to Leisnoi on ground that it did not satisfy ANCSA's certification requirements is moot.

Navajo Nation v. United States Forest Service
Briefs & Pleadings
Docket No. 08-846

Subjects: United States. Forest Service; Arizona Snow Bowl (Ariz.) -- Remodeling; Rites and ceremonies -- Navajo Nation, Arizona, New Mexico & Utah; Coconino National Forest (Ariz.); Sacred sites -- Navajo Nation, Arizona, New Mexico & Utah; Sewage.

*Issues: Does government action not constitute "substantial burden" under RFRA unless it forces individuals to choose between following tenets of their religion and receiving governmental benefits, or coerces them by threatening civil or criminal sanctions to act contrary to their religious beliefs--issue on which there is widespread disagreement among circuits?

History: Petition for certiorari was filed on 1/05/2009. Petition was denied on 6/8/09.

*Holding below: Navajo Nation v. U.S. Forest Service, 535 F.3d 1058. Federal agency's approval of permittee's use of treated sewage effluent to make artificial snow for ski area on federal land sacred to Native Americans would not force Native Americans to choose between following tenets of their religion and receiving government benefit, or coerce them to act contrary to their religious beliefs by threat of civil or criminal sanctions, and thus does not "substantially burden" their religious beliefs within meaning of Religious Freedom Restoration Act, 42 U.S.C. § 2000bb-1(a).

Related News Stories: SCOTUS ducks Ariz. ski dispute (KPHO.com) 6/8/09.

 

California v. San Pasqual Band of Mission Indians
Docket No. 08-1208

Subjects: San Pasqual Band of Diegueno Mission Indians of California; Intergovernmental agreements -- California; Indian gaming -- Licenses; Slot machines; Gambling on Indian reservations -- California; Jurisdiction -- United States.

*Issues: May court conclude that absent person need not be joined, under Fed. R. Civ. P. 19 (a), on ground that, in future cases, if multiple district courts issue inconsistent decisions, court of appeals could simply resolve inconsistences?

History: Petition for certiorari was filed on 3/26/09. Petition was denied on 5/26/09.

*Holding below: San Pasqual Band of Mission Indians v. California, 2008 WL 4472608. Indian tribe that is party to 1999 compact with California under Indian Gaming Regulatory Act may proceed to litigate size of slot machine license pool available to Indian tribes in California that were parties to approximately 60 essentially identical Indian gaming compacts between those tribes and the state, without joining the other tribes, because those tribes have no protectable interest in size of license pool that qualifies them as required parties within meaning of Fed. R. Civ. P. 19(a).

Marceau v. Blackfeet Housing Authority
Briefs & Pleadings
Docket No. 08-881

Subjects: United States. Dept. of Housing and Urban Development; Blackfeet Indian Housing Authority (Mont.); Arsenic -- Environmental aspects -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Housing -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Civil rights -- United States; Landlord and tenant -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Sovereign immunity -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Jurisdiction -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana; Exhaustion of tribal remedies; Trusts and trustees -- United States; United States. Administrative Procedure Act.

*Issues: Were statutes, regulations, and HUD requirements so pervasive that federal control over Indian housing construction created trust responsibility towards Indians under United States v. Mitchell, 463 U.S. 206 (1983), and United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003), which complaint alleges was violated in this case?

History: Petition for certiorari was filed on 1/14/2009. Petition was denied on 5/18/09.

*Holding below: Marceau v. Blackfeet Housing Authority, 540 F.3d 916. Under 1937 United States Housing Act and 1996 Native American Housing Assistance and Self-Determination Act and related regulations, Department of Housing and Urban Development made block grants to Indian tribes or their designated housing entities to carry out activities related to provision of affordable housing in accordance with certain requirements, but federal government held no property--land, houses, money, or anything else--in trust, did not exercise control over Indian land, houses, or money by means of these funding mechanisms, did not build, manage, or maintain any housing, and thus did not violate any federal trust responsibility to plaintiff Indians who alleged that houses they purchased under block grant program were defective.

Seneca v. United South and Eastern Tribes, et al
Docket No. 08-1127

Subjects: United South and Eastern Tribes; Public contracts -- United States; United States. Dept. of Health and Human Services; Grievance arbitration -- United States; United States. Federal Tort Claims Act; United States. Federal Employees Liability Reform and Tort Compensation Act of 1988.

*Issues: Did court of appeals impermissibly expand intent of Indian Self-Determination Act by applying "liberal" standard to bring within its scope libelous conduct directed by tribal officials against federal agency official?

History: Petition for certiorari was filed on 3/05/09. Petition was denied on 5/18/09.

*Holding below: Seneca v. United South and Eastern Tribes, et al, 2008 WL 4216874, Court affirms district court's substitution of United States as defendant in tort suit by former assistant director of Office of Tribal Affairs at Agency for Toxic Substances and Disease Registry, who alleged that nonprofit organization that represents numerous American Indian tribes collectively, and three of group's employees, made false statements disparaging him, which led to his removal from OTA position; because organization is party to self-determination contract with U.S. Department of Health and Human Services/Indian Health Service to help with tribal health programs, it operates as federal contractor under some circumstances, and district court properly determined that group and its employees were engaged in activity in accordance with duty under self-determination contract to "facilitate meaningful consultation between agencies of [HHS] and tribes," and thus were acting within scope of their federal employment and were entitled to Federal Tort Claims Act coverage, at time of events that gave rise to plaintiff's tort claims; district court also properly dismissed case after substituting federal government as defendant because plaintiff failed to exhaust administrative remedies, as required by FTCA.

Losh v. Minnesota
Docket No. 08-8522

Subjects: United States. Public Law 280; Mille Lacs Band of Chippewa Indians -- Members; Jurisdiction -- Minnesota -- Itasca County; Traffic violations -- On Indian reservations -- Leech Lake Indian Reservation (Minn.); Jurisdiction -- Minnesota.

*Issues: not yet available from USLW

History: Petition for certiorari was filed on 2/02/09. Petition was denied on 4/6/09.

*Holding below: State of Minnesota v. William Losh, 755 N.W.2d 736. (from Westlaw) The Supreme Court, Dietzen, J., held that statute defining offense of driving after revocation of a driver's license was criminal/prohibitory when the underlying basis for the revocation was driving while impaired or a failure of a test administered under the implied-consent law.

Cook v. Avi Casino Enterprises
Docket No. 08-929

Subjects: Jurisdiction -- United States; Sovereign immunity -- Indian business enterprises; Indian business enterprises -- Fort Mojave Indian Tribe of Arizona, California & Nevada; Avi Casino Enterprises, Inc.; Casinos; Liability (Law); Drinking and traffic accidents; Law -- Arizona.

*Issues: Does tribal sovereign immunity doctrine bar dram shop lawsuit against tribal corporation and its employees?

History: Petition for certiorari was filed on 1/22/09. Petition was denied on 5/4/09.

*Holding below: Cook v. Avi Casino Enterprises, 548 F.3d 718. Native American tribe's sovereign immunity bars lawsuit against tribal corporation and two of its employees by motorist who was hit by drunk driver, an employee of the tribal corporation, who had been served free drinks at corporate function while obviously intoxicated and then driven to her car minutes before her collision with plaintiff.

Cook v. Avi Casino Enterprises
Briefs & Pleadings
Docket No. 08-930

Subjects: Jurisdiction -- United States; Sovereign immunity -- Indian business enterprises; Indian business enterprises -- Fort Mojave Indian Tribe of Arizona, California & Nevada; Avi Casino Enterprises, Inc.; Casinos; Liability (Law); Drinking and traffic accidents; Law -- Arizona.

*Issues: (1) Does tribal sovereign immunity doctrine bar dram shop lawsuit against tribal corporation and its employees? (2) Did Arizona courts erroneously hold that there was no general personal jurisdiction? (3) Did Arizona courts erroneously hold that there was no specific personal jurisdiction?

History: Petition for certiorari was filed on 1/22/09. Petition was denied on 5/4/09.

*Holding below: Cook v. Avi Casino Enterprises, 2008 WL 4108121. Native American tribe's corporation that operates casino in Nevada, and its employees, lack pervasive enough contacts with Arizona such that Arizona court would have general personal jurisdiction over lawsuit against them by motorist whose vehicle was hit, in Arizona, by drunk driver who had become intoxicated at corporate function and was then driven to her car minutes before her collision with plaintiff; given that both corporate function and the collision occurred on reservation, and that the only defendants are a tribal entity and its employees who were acting in course and scope of their duties, Arizona courts also lack specific personal jurisdiction over defendants; accordingly, trial court's grant of defendants' motion to dismiss is affirmed.

Related News Stories: • • Cook v. Avi Casino Enters. — trouble? (Turtle Talk) 1/30/09

California v. Cachil Dehe Band of Wintun Indians of the Colusa Indian Community
Briefs & Pleadings
Docket No. 08-931

Subjects: Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Indian gaming -- Cachil DeHe Band of Wintun Indians of the Colusa Indian Community of the Colusa Rancheria, California; Gambling on Indian reservations -- California; Intergovernmental agreements - Indian gaming; Breach of contract; Licenses.

*Issues: (1) In applying Rule 19, may federal court, consistent with rule of decision in Republic of Philippines v. Pimentel, use authority it has under Rule 19(b) to safeguard (through shaping of relief) legally protected interest of absent sovereign as basis for finding that absent sovereign is not required party within meaning of Rule 19(a)? (2) May asserted ability of court of appeals to resolve inconsistent district court decisions on same claim for relief be relied upon to conclude that absent person need not be joined under Rule 19(a)?

History: Petition for certiorari was filed on 1/22/09. Petition was denied on 4/20/09.

*Holding below: Cachil Dehe Band of Wintun Indians of the Colusa Indian Community v. California, 536 F.3d 1034. Number of gaming licenses allocated under state's 1999 compacts with Indian tribes, under Indian Gaming Regulatory Act, is subject to amendment and to state's authority to issue unlimited number of licenses outside pool created by 1999 compacts, and thus absent Indian tribes' interest in avoiding competition engendered by issuance of additional licenses does not arise from terms in bargained contracts, is not "legally protected" interest making them "required" parties within meaning of Fed. R. Civ. P. 19(a)(1)(B) in one tribe's breach of compact action against state demanding issuance of additional licenses to it, and district court abused its authority in dismissing suit under Rule 19 based on failure to join necessary and indispensable parties; given that absent tribes are not required parties under Rule 19(a), disposition is not affected by Republic of Philippines v. Pimentel, 76 U.S.L.W. 4445 (U.S. 2008), which held that appeals court had not given full effect to sovereign immunity in its Rule 19(b) analysis.

Schwarzenegger v. Rincon Band of Luiseno Mission Indians
Briefs & Pleadings
Docket No. 08-1030

Subjects: Gambling -- Law and legislation -- United States; Gambling on Indian reservations -- California; Indian gaming - Intergovernmental agreements; Rincon Band of Luiseno Mission Indians of the Rincon Reservation, California; Indian gaming; Slot machines.

*Issues: May asserted ability of court of appeals to resolve inconsistent district court decisions on same claim for relief be relied upon to conclude that absent person need not be joined under Fed. R. Civ. P. 19(a)?

History: Petition for certiorari was filed on 2/11/09. Petition was denied on 4/20/09.

*Holding below: Rincon Band of Luiseno Mission Indians v. Schwarzenegger, 2008 WL 3822538 Indian tribe that is party to gaming compact with California may continue to litigate its complaint--seeking declaratory judgment regarding aggregate maximum number of slot machine licenses available to tribes in California that are parties to approximately 60 essentially identical Indian gaming compacts with state--without joining other compacting tribes, because those tribes have no protectable interest in size of license pool that qualifies them as required parties within meaning of Fed. R. Civ. P. 19(a).

Coushatta Tribe of Louisiana v. Meyer and Associates
Briefs & Pleadings
Docket No. 08-985

Subjects: Contracts -- Coushatta Tribe of Louisiana; Exhaustion of tribal remedies; Jurisdiction -- Louisiana; Sovereign immunity -- Coushatta Tribe of Louisiana; Energy development -- Coushatta Tribe of Louisiana; Power-plants -- Coushatta Tribe of Louisiana; Joint ventures -- Coushatta Tribe of Louisiana; Meyer & Associates, Inc.; Jurisdiction -- Coushatta Tribe of Louisiana.

*Issues: (1) Are state courts required to apply and follow tribal exhaustion doctrine, and in this case, should Louisiana Supreme Court have given Coushatta Tribal Court first opportunity to interpret Coushatta law? (2) Can Native American tribe be forced to litigate claims in state court when ostensible waiver of sovereign immunity is not valid under that tribe's law?

History: Petition for certiorari was filed on 1/30/09. Review was denied on 4/6/09.

*Holding below: Meyer and Associates Inc. v. Coushatta Tribe of Louisiana, 992 So.2d 446. U.S. Supreme Court has never held applicable to state courts exhaustion of tribal remedies doctrine, which holds that when federal and tribal courts have concurrent jurisdiction, or when tribal court has even colorable claim of jurisdiction, federal courts will afford tribal courts opportunity to first determine their jurisdiction; in breach of contract action between tribe and nonmember, trial court did not err in entertaining issue of whether it had subject matter jurisdiction, which turned on whether tribe had validly waived its sovereign immunity in contract, and in declining to defer to tribal court on that issue; tribe validly executed waivers of sovereign immunity and expressly subjected itself to trial court's jurisdiction in contract, and trial court, as matter of comity, did not abuse its discretion in exercising jurisdiction over contract dispute between tribe and nonmember, as to which state courts, unlike federal courts, lack power to review tribal court's exercise of jurisdiction over nonmembers.

Catskill Development v. Harrah's Operating Company
Docket No. 08-984

Subjects: Contracts -- St. Regis Band of Mohawk Indians of New York; Casinos -- Design and construction -- St. Regis Band of Mohawk Indians of New York; Gambling on Indian reservations -- New York (State); Indian gaming -- St. Regis Band of Mohawk Indians of New York; United States. Indian Gaming Regulatory Act.

*Issues: (1) Must "Indian lands" presently be held in trust by United States for application of IGRA? (2) Did Congress intend to prohibit Indian tribes from entering into precursory agreements to seek regulatory approval under IGRA?

History: Petition for certiorari was filed on 1/16/09. Review was denied on 4/6/09.

*Holding below: Catskill Development v. Park Place Entertainment Corporation, 547 F.3d 115
Provisions of 1988 Indian Gaming Regulatory Act requiring that Indian tribes may enter into contracts for management of tribal gaming operations only with approval of National Indian Gaming Commission, 25 U.S.C. §§ 2710(d)(9), 2711(a)(1), and NIGC implementing regulations, 25 C.F.R. §§ 533.1, 533.7, do not expressly require that gaming contract relate to Indian lands for it to be subject to NIGC approval, and even if "Indian land" requirement were read into those provisions, contracts whose purpose was to build and operate casino on what was intended to become Indian land via transfer would require NIGC approval in view of Dictionary Act, 1 U.S.C. § 1, which provides that "[i]n determining the meaning of any Act of Congress, unless the context indicates otherwise ... words used in the present tense include the future as well as the present," and thus such contracts, lacking NIGC approval, are void; approval requirement provisions are broadly worded, are designed to protect best interests of Indian tribes, and do not distinguish between operational provisions of contracts and precursory obligation of tribe to use reasonable best efforts in obtaining requisite government approvals.

Seminole Tribe of Florida v. Florida House of Representatives
Briefs & Pleadings
Docket No. 08-746

Subjects: Indian gaming -- Seminole Tribe of Florida; Gambling on Indian reservations -- Florida; Florida. Governor -- Powers and duties; Intergovernmental agreements -- Seminole Tribe of Florida; Intergovernmental agreements - Florida; United States. Indian Gaming Regulatory Act.

*Issues: Did Florida Supreme Court violate Indian commerce clause and supremacy clause by ruling, based on Florida "policy" and contrary to express language of Indian Gaming Regulatory Act and decisions of a number of U.S. courts of appeals, that governor of Florida lacked authority to agree to tribal operation of banked card games in tribal-state compact?

History: Petition for certiorari was filed on 12/08/2008. Review was denied on 3/2/09.

*Holding below: Florida House of Representatives v. Crist, 2008 WL 2669767. Florida governor lacked constitutional authority to bind state to gaming compact that obviously departs from Florida's public policy by expanding casino gambling on Seminole Indian tribal lands to legalize types of gaming--including blackjack and baccarat--that are unlawful everywhere else in state.

Friday v. United States
Briefs & Pleadings
Docket No. 08-6651

Subjects: United States. Bald and Golden Eagle Protection Act; Members -- Arapahoe Tribe of the Wind River Reservation, Wyoming; Bald eagles -- Protection -- United States; United States. Religious Freedom Restoration Act; Fish and games licenses.

*Issues: not yet available

History: Petition for certiorari was filed on 10/01/2008. Petition was denied on 2/23/09.

*Holding below: (from Westlaw) United States v. Friday, 525 F.3d 938. The Court of Appeals, McConnell, Circuit Judge, held that:
(1) both prongs of RFRA's strict scrutiny test were legal questions;
(2) Court of Appeals was required to engage in independent review of “constitutional facts”;
(3) permit process for taking eagles was not futile, such that prohibition on taking eagles would be effectively without exception, thus resulting in substantial burden on tribal religious practices in violation of RFRA;
(4) permitting process did not facially violate RFRA;
(5) Fish and Wildlife Service (FWS) was not required to engage in affirmative outreach for permitting process to be least restrictive means of preserving eagles; and
(6) any difference in government's treatment of Native Americans taking eagles for religious purposes and power companies whose power lines killed eagles did not indicate that government failed to protect eagles in least restrictive manner.
Reversed and remanded.

Relate News Stories: U.S. Supreme Court denies hearing Wyo. eagle case (abc news) 2/24/09.

Rodriguez-Martinez v. United States
Briefs & Pleadings
Docket No. 08-6467

Subjects: Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal; Religious articles; Eagle feathers; United States. Religious Freedom Restoration Act; United States. Bald and Golden Eagle Protection Act.

*Issues: not yet available

History: Petition for certiorari was filed on 9/22/2008. Petition was denied 1/26/09.

*Holding below: (from Westlaw) United States v. Vasquez-Ramos, 531 F.3d 987. The Court of Appeals held that prosecution of defendants did not violate RFRA.

Harrah's Operating Co., v. NGV Gaming, Ltd.
Briefs & Pleadings
Docket No. 08-655

Subjects: NGV Gaming, Ltd. (Fla.); Upstream Point Molate, LLC. (Calif.); Harrah's Operating Company, Inc.; Contracts - Federal supervision; Indian gaming -- Guidiville Rancheria of California; Gambling on Indian reservations -- California; Guidiville Rancheria of California.

*Issues:(1) Does Dictionary Act's rule that words used in present tense also include future tense, unless context indicates otherwise, apply only if statutory text at issue is ambiguous? (2) Does term "Indian lands" as used in 25 U.S.C. §§ 81 and 2701-2721 include both land that "is held by the United States in trust for an Indian tribe" and land that "will be held in trust by the United States for an Indian tribe"?

History: Petition for certiorari was filed on 11/12/2008. Petition was denied on 1/26/09.

*Holding below: Guidiville Band of Pomo Indians v. NVG Gaming, 531 F.3d 767. Word "is," as used in 25 U.S.C. § 81(a), which defines "Indian lands" and states that they are "lands the title to which is held by the United States in trust for an Indian tribe," has present tense meaning only, and thus Section 81 applies only to contracts that affect lands already held in trust for Indian tribes by United States, and not to lands acquired in future that may be held in trust for tribes; there is no need to resort to Dictionary Act's default rules of statutory interpretation, given that context clearly indicates that Section 81 is limited to only those contracts involving presently held trust lands; accordingly, tribe's contract with gaming company for gaming facility on parcel of land yet-to-be-acquired by tribe is not within purview of Section 81(a) and thus not subject to Section 81(b)'s requirement that contract with tribe that encumbers Indian land for seven or more years is not valid unless approved by secretary of interior; nor is contract's validity impaired by Indian Gaming Regulatory Act's Section 2710(b)(2)(A), which pertains only to tribal ordinances and resolutions, and not to tribe's contract with third party; accordingly, district court's dismissal of gaming company's suit against another gaming company for tortious interference with its contract with tribe to develop and construct gaming facility on yet-to-be-acquired parcel of land is reversed, and case is remanded for resolution on its merits.

Michigan Gambling Opposition v. Kempthorne
Briefs & Pleadings
Docket No. 08-554

Subjects: Gambling on Indian reservations -- Michigan; Indian gaming -- Class III -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; United States. Indian Gaming Regulatory Act; Building sites; United States. National Environmental Policy Act of 1969; Environmental impact statements; Finding of No Significant Impact (FONSI); Intergovernmental agreements -- Match-e-be-nash-she-wish Band of Pottawatomi Indians of Michigan; Intergovernmental agreements -- Michigan; Land into trust.

*Issues: (1) Is standardless delegation by Congress of totally "discretion[ary]" authority to executive official to acquire land "for Indians" unconstitutional delegation of legislative power? (2) Does 1934 Indian Reorganization Act empower secretary of interior to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934?

History: Petition for certiorari was filed on 10/23/2008. Petition was denied on 1/21/09.

*Holding below: Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23. Section 5 of 1934 Indian Reorganization Act, which authorizes secretary of interior to acquire land "for the purpose of providing land for Indians," is part of statute whose unambiguous purpose--to promote economic development among Indians--provides intelligible principle authorizing secretary's acquisition of land "for the ... Indians," and is therefore not unconstitutional delegation of legislative authority.

Related News Stories: Supreme Court rejects land-into-trust case (Indianz.com) 1/22/09. U.S. Supreme Court will not hear appeal on Mich casino. (Forbes) 1/21/09.

Roberts v. Hagener
Briefs & Pleadings
Docket No. 08-519

Subjects: Equality before the law -- United States; United States. Constitution. 14th Amendment; Jurisdiction -- United States; Game laws -- Montana; Hunting -- On Indian reservations -- State supervision.

*Issues: Notwithstanding Morton v. Mancari, does 14th Amendment's' equal protection clause require that strict judicial scrutiny be applied to any legislation or regulation of state or its political subdivisions that treats American Indians or American Indian tribal members either preferentially or discriminatorily, without express delegation of such authority from Congress?

History: Petition for certiorari was filed on 10/16/2008. Petition was denied on 1/12/09.

*Holding below: Roberts v. Hagener, 2008 WL 2787558. District court's summary judgment in favor of Montana in non-Indian's suit alleging that Montana big game hunting regulation that permits only "tribal members" to hunt big game on Indian reservations in state violates 14th Amendment's equal protection clause is affirmed; district court correctly reviewed regulation under rational basis standard, as directed under Morton v. Mancari, 417 U.S. 535 (1974), and determined that state's asserted objectives of promoting conservation of wildlife within reservations and avoiding logistical difficulties, occasioned primarily by various land ownership patterns within reservation, of regulating hunting differently for tribal members and non-members were legitimate policy reasons for regulation and were rationally related to allowing only tribal members to hunt big game on reservations.

South Fork v. United States
Briefs & Pleadings
Docket No. 08-231

Subjects: Quiet title actions -- Te-Moak Tribe of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band); United States; Trusts and trustees -- Accounting -- United States; United States. Indian Claims Commission; Tribes -- Compensation for taking; Tribes - Treaties; Tribes - Land tenure; Jurisdiction - United States.

*Issues: (1) Does R.Ct.Fed.Cl. 60(b)(4), providing for relief from void judgment, require that it be raised within "reasonable time," contrary to other courts of appeals' decisions construing identical Fed.R.Civ.P. 60(b)(4) and holding that there is no timeliness requirement? (2) Can Treaty of Ruby Valley be construed under R.Ct.Fed.Cl. 12(b)(6) as matter of law to not confer treaty-recognized title, without regard to established tenets for interpretation of Indian treaties? (3) Was statutory "finality" bar of Section 22 of Indian Claims Commission Act, 25 U.S.C. § 70u, in effect after termination of Indian Claims Commission on Sept. 30, 1978, such that it could then attach to ICC judgment even though conditions of statute had not been met at time of ICC's termination?

History: Petition for certiorari was filed on 8/20/2008. Petition was denied on 1/12/09.

*Holding below: Western Shoshone National Council v. United States, 279 Fed.Appx. 980. Indian tribes' claim to set aside Indian Claims Commission's 1977 judgment awarding Western Shoshone tribes $26.145 million for property taken by United States, on ground that ICC denied tribes due process in refusing to accept tribe's 1977 notice of discharge of its counsel, was not "made within a reasonable time" within meaning of R.Ct.Fed.Cl. 60(b)(4), and even if it were deemed to fall within rule's exception for "independent action," was untimely under six-year statute of limitations in 28 U.S.C. § 2501 for claims within jurisdiction of U.S. Court of Federal Claims; tribes' claim for $14 billion in prejudgment interest based on title to taken lands conferred by 1863 Treaty of Ruby Valley was properly dismissed on grounds that Northwestern Bands of Shoshone Indians v. United States, 324 U.S. 335 (1945), previously held that treaty did not recognize title so as to establish property interest compensable under Fifth Amendment, nothing in treaty's language suggests that United States intended to convey title to tribes, and United States' actions after adopting treaty are inconsistent with interpretation that treaty conveyed title; tribes' claim for royalties and minerals mined and extracted under treaty was included in ICC's 1977 judgment and is thus barred under 25 U.S.C. § 70u(b), which provides that final determination by ICC against claimant "shall forever bar any further claim or demand against the United States arising out of the matter involved in the controversy."

Pocatello, Idaho v. Idaho
Briefs & Pleadings
Docket No. 08-135

Subjects: Snake River Basin Adjudication; Water rights -- Idaho -- Pocatello; Railroads -- Right of way -- Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho.

*Issues: (1) Should water right that Congress granted in 1888 to Pocatello, Idaho "in common with" Shoshone-Bannock Tribes, and upon which city has relied for well over one century, be set aside on ground that, although Congress properly manifested its "clear and plain" intent to diminish treaty rights, Congress lacked constitutional power to do so in absence of tribal consent? (2) Should rule of Caldwell v. United States, 250 U.S. 14 (1919), which requires that Congress use express words of conveyance to signify sovereign's intent to convey its own lands to nongovernmental entity, be extended to diminishment cases, when, as here, act of Congress clearly manifests sovereign's intent to diminish and convey tribal rights to water to another party? (3) Is Idaho Supreme Court's construction of Pocatello Townsite Act, as granting to city only federal right of access to reservation lands and right to seek water rights under state law, rather than grant of federal water right, inconsistent with supremacy clause, which establishes that Indian reservations are to be governed by federal law, not state law, unless Congress has expressly provided to contrary?

History: Petition for certiorari was filed on 8/1/2008. Petition for certiorari was denied on 12/8/08.

*Holding below: Pocatello v. State, 180 P.3d 1048. Provision of 1888 act of Congress that granted non-Indians living in Pocatello, Idaho, located within boundaries of reservation, right to "the free and undisturbed use in common with the said Indians of the waters of any river, creek, stream, or spring flowing through the Fort Hall Reservation in the vicinity of said town, with right of access at all times thereto, and the right to construct, operate, and maintain all such ditches, canals, works, or other aqueducts, drain, and sewerage pipes, and other appliances on the reservation, as may be necessary to provide said town with proper water and sewerage facilities," did not grant federal water right to city, but rather granted city access to surface water sources on reservation, along with opportunity to establish water right under state law; absent explicit statutory language granting water rights under Constitution's property clause, state has right to manage and allocate its own water resources, and state water law controls any claims by city; 1887 cession agreement that ceded certain reservation lands to non-Indian settlers on land that is now Pocatello, and that was ratified by 1888 act, did not abrogate any tribal rights and did not cede any water rights.

Bodkin v. Cook Inlet Region Inc.
Briefs & Pleadings
Docket No. 08-440

Subjects: Alaska Native corporations; Dividends; Age discrimination; Due process of law; United States. Constitution. 5th Amendment; Cook Inlet Region, Inc.; United States. Alaska Native Claims Settlement Act.

*Issues: (1) Is state action present when private party (here Alaska Native regional corporation) relies upon federal statute, 43 U.S.C. § 1606(r), to engage in discrimination among its shareholders--by paying corporate distributions only to its original senior shareholders and by excluding other shareholders who own same class of stock--a discrimination that violates excluded shareholders' contractual right to equal treatment and that is prohibited by state law? (2) Does impairment of contract between corporation and its shareholders--by discrimination among shares of same class of stock under aegis of federal law, 43 U.S.C. §1606 (r)--violate Fifth Amendment's due process clause, which incorporates prohibition against impairment of contracts by government?

History: Petition for certiorari was filed on 10/02/2008. Petition was denied 11/17/08.

*Holding below: Bodkin v. Cook Inlet Region Inc. 182 P.3d 1072. Federal government's authorization, in Section 7 of Alaska Native Claims Settlement Act, of Alaska Native regional corporation's distribution of benefits to senior shareholders that are not afforded to nonsenior shareholders does not involve state action implicating Fifth Amendment, and thus nonsenior shareholders' claims that unequal distribution of benefits violated due process fails for lack of state action.

South Fork Band v. United States
Briefs & Pleadings
Docket No. 08-100

Subjects: Quiet title actions -- Te-Moak Tribe of Western Shoshone Indians of Nevada (Four constituent bands: Battle Mountain Band; Elko Band; South Fork Band and Wells Band); United States; Trusts and trustees -- Accounting -- United States; United States. Indian Claims Commission; Tribes -- Compensation for taking; Tribes - Treaties; Tribes - Land tenure; Jurisdiction - United States; United States. Quiet Title Act.

*Issues: (1) Can constructive notice under limitations provision of Quiet Title Act, 28 U.S.C. § 2409a(g), be construed on motion to dismiss to extinguish any remedy for land rights of Indian tribe under treaty with United States that have not before been litigated or adjudicated? (2) Is Ninth Circuit's decision on constructive notice under limitations provision of Quiet Title Act in conflict with "adverse interest" rule established in other courts of appeals, as well as Ninth Circuit's prior decisions, under which constructive notice requires government's assertion of not just any interest in subject land, but rather interest that is adverse to claim set forth in quiet title action?

History: Petition for certiorari was filed on 7/21/2008. Petition was denied on 10/06/08.

*Holding below: (case is unpublished) Court affirms district court decision that dismissed tribal action to quiet title as barred by Quiet Title Act's limitations period, district court having held that extensive litigation that preceded quiet title action, all of which occurred well outside 12-year limitations period contained in Quiet Title Act, 28 U.S.C. § 2409a(g), makes it impossible to conclude that plaintiff tribe neither knew nor should have known that United States claimed interest, adverse to that of tribe, in disputed land, which consists of more than 60 million acres covering most of eastern Nevada and portions of California, Idaho, and Utah, boundaries of which are defined by 1863 Treaty of Ruby Valley.

Matheson v. Gregoire
Briefs & Pleadings
Docket No. 08-23

Subjects: Sovereign immunity - Tribes; Excise taxes; Intergovernmental agreements; Cigarettes - Taxation - Law and legislation - Washington (State); Cigarette vendors - On Indian reservations - Puyallup Tribe of the Puyallup Reservation, Washington; Interstate commerce – Law and legislation – United States.

*Issues: (1) Are state of Washington cigarette tax laws federally preempted and inapplicable to American Indian motor carrier hauling cigarettes between Indian reservations in interstate and Indian commerce? (2) Can laws of state of Washington regulate enrolled tribal Indian shipping goods between federally recognized Indian reservation in Idaho to his business on reservation of his membership located in state of Washington?

History: Petition for certiorari was filed on 7/1/2008. Petition was denied on 10/06/08.

*Holding below: Matheson v. Gregoire, 161 P.3d 486. In cigarette vendor's suit challenging tax agreement between Indian tribe and state, trial court properly dismissed tribe based on tribal immunity, and then properly dismissed state on ground that tribe was indispensable party.

Klamath Tribes of Oregon v. PacificCorp
Briefs & Pleadings
Docket No. 07-1492

Subjects: Treaty rights -- Klamath Tribes, Oregon; Fishing rights -- Klamath Tribes, Oregon; PacificCorp.

*Issues: Should right of action at law for damages against private dam builder be recognized as preferred remedy for sole Northwest treaty that (a) forbids treaty Indians from leaving their reservation to protect their exclusively on reservation fishing right from downstream interference and (b) granted control over only means of salmon passage to non-Indian pioneers?

History: Petition for certiorari was filed on 5/28/2008. Petition was denied on 10/06/08.

*Holding below: Klamath Tribes of Oregon v. Pacific Corp, 2008 WL539266 Indian tribes' suit for damages against third party for violating exclusive fishing rights granted to tribes in 1864 treaty is foreclosed by Skokomish Indian Tribe v. United States, 410 F.3d 506, 73 U.S.L.W. 1554 (9th Cir. 2005) (en banc), which held that 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 that 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.

Kemp v. Osage Nation
Briefs & Pleadings
Docket No. 07-1484

Subjects: Taxation -- Law and legislation -- Oklahoma -- Application -- Osage Tribe, Oklahoma -- Members; Income tax -- Osage Tribe, Oklahoma -- Members -- Oklahoma -- Osage County; Indian Country (Okla.) -- Defined; Osage Tribe, Oklahoma -- Officials and employees -- Taxation -- Oklahoma.

*Issues: (1) May federal courts employ doctrine of Ex parte Young to permit suits by Indian tribes, otherwise barred by state sovereign immunity, that seek to establish sovereignty and jurisdiction over historical reservations, without taking into consideration substantial impact of relief on sovereignty and jurisdiction long-exercised over such lands by states? (2) In view of this court's ruling in Idaho v. Coeur d'Alene Tribe of Idaho, and other decisions, may federal court allow Indian tribe's suit--otherwise barred by 11th Amendment--to proceed against state officers under so-called "straightforward inquiry" used to determine application of Ex parte Young exception, when relief would divest state of substantial and long-exercised civil and criminal jurisdiction over its largest county? (3) Does suit by Indian tribe seeking judicial determination that its historical reservation "remains" present-day reservation involve type of retrospective relief that cannot be pursued against state officers under Ex parte Young exception to state sovereign immunity?

History: Petition for certiorari was filed on 5/27/2008. Petition was denied on 10/06/08.

*Holding below: Osage Nation v. State of Oklahoma Ex Rel. Oklahoma Tax Commission,
2007 WL 4553668 Although 11th Amendment generally bars suit against state by Indian tribe, doctrine of Ex parte Young, 209 U.S. 123 (1908), permits tribal suit to enjoin state's assessment of income tax on certain tribal members to proceed in federal court against individual members of state tax commission, sued in their official capacities, because suit seeks relief that is prospective only by barring future taxation of tribal members who are employed by tribe on land held in trust for tribe by United States but who live elsewhere in county on land that is, at least ostensibly, not trust land; although case is more than mere tax dispute, in that its essence is whether tribe's reservation encompasses all of Osage County, Oklahoma, or only part of it, and calls to mind "literal land grab effort made by plaintiffs" in Idaho v. Coeur d'Alene Tribe of Idaho, 524 U.S. 261 (1997), which created exception to Young doctrine, basic issue is sovereignty, not title dispute or ownership of land, and, in determining applicability of Ex parte Young, court may not consider state sovereignty but only whether relief sought is prospective in caption and substance.

Related News Stories: Supreme Court won't hear Osage Nation case (Indianz.com) 10/6/08

Kickapoo Traditional Tribe of Texas v. Texas
Briefs & Pleadings
Docket No. 07-1109

Subjects: Texas; United States; Indian gaming -- Class III -- Kickapoo Traditional Tribe of Texas; Intergovernmental agreements -- Texas; Intergovernmental agreements -- Kickapoo Traditional Tribe of Texas; Negotiation -- Texas; United States. Indian Gaming Regulatory Act; Good faith (Law).

*Issues: (1) Does state's refusal to consent to IGRA's judicial remedy also nullify secretary's fallback authority to issue procedures to regulate Indian gaming as held by Fifth Circuit, contrary to reasoning of Ninth and Eleventh Circuits? (2) If secretary's fallback authority to regulate Class III gaming is struck down, as Fifth Circuit held, should IGRA's now-inappropriate requirement of tribal-state compact fall also, consistent with this court's severance analysis under Alaska Airlines Inc. v. Brock, 480 U.S. 678 (1987)?

History: Petition for certiorari was filed on 2/25/2008. Petition was denied on 10/06/08.

*Holding below: State of Texas v. United States, 497 F.3d 491. Indian Gaming Regulatory Act is violated by secretary of interior's regulations for resolving impasse between Indian tribe seeking to operate Class III gaming on its reservation and state where reservation is located that has refused to waive its sovereign immunity from tribe's suit under IGRA to determine whether state has negotiated in good faith, such regulations permitting tribe to submit Class III gaming proposal to secretary, after which state has two options: (i) refuse to submit alternative proposal, after which secretary reviews tribe's proposal, either approves it or offers opportunity for conference between state and tribe to address unresolved issues in tribe's proposal, and then makes final decision either setting forth secretary's proposed Class III gaming procedures for tribe, or disapproving tribe's proposal, or (ii) submit alternative proposal, after which secretary appoints mediator to resolve differences between state's plan and tribe's proposal and then either accepts mediator's proposal or prescribes his own terms under which Class III gaming may take place; under IGRA, Congress left little remedial authority for secretary to exercise, and IGRA's judicially managed scheme of litigation over state's good faith, followed by negotiation, and then mediation, allows secretary to step in only at end of process and then only to adopt procedures based upon mediator's proposed tribal-state compact for Class III gaming; IGRA does not permit secretary to decide state's good faith, to require or name mediator, or to pull out of thin air compact provisions that secretary is then empowered to enforce.

Lawrence v. Department of Interior
Briefs & Pleadings
Docket No. 08-173

Subjects: Members -- Standing Rock Sioux Tribe of North & South Dakota; United States. Bureau of Indian Affairs -- Officials and employees; Employee fringe benefits -- Fire fighters; Retirement planning.

*Issues: (1) Can Department of Interior ignore imperative of Indian Preference Act by "blindly" applying civil service regulations that effectively deprive Indian firefighters on Indian reservations of enhanced retirement benefits to which they may otherwise be entitled? (2) Can secretary of interior, by failing to adopt any standards by which BIA could identify Indian employees as firefighters, thereby exclude majority of Indian civil service firefighters on Indian reservations from timely filing for previous years credits toward their enhanced retirement benefits? (3) Did trial court err in ruling that evidence of few BIA Indian firefighter employees applying for enhanced retirement benefits, when, in fact, BIA employs majority of Indian firefighters, did not satisfy prima facie showing of disparate impact?

History: Petition for certiorari was filed on 8/11/2008. Petition was denied on 10/6/08.

*Holding below: Lawrence v. Department of Interior , 525 F.3d 916 Bureau of Indian Affairs did not violate federal trust responsibility toward Indians or Indian Preference Act, or discriminate on basis of race, when it did not give member of tribe who worked for BIA actual notice of application deadline for retroactive reclassification of his employment to reflect his firefighting service, which resulted in his missing deadline and in subsequent denial of enhanced retirement benefits; publication of deadline in Federal Register was constructive notice and government's trust responsibility toward Indian tribes does not change this rule, Indian Preference Act's "hiring" preferences do not require retroactive recognition that tribal member's duties included firefighting, and tribal member failed to make prima facie showing of disparate impact by failing to present evidence that BIA's failure to provide actual and timely notice disproportionately affected Indians more than other racial groups.

Rule 46 Dismissal
Ho-Chunk v. Wisconsin
Briefs & Pleadings
Docket No. 07-1402

Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Class III -- Ho-Chunk Nation of Wisconsin; Intergovernmental agreements -- Ho-Chunk Nation of Wisconsin; Intergovernmental agreements -- Wisconsin; Jurisdiction -- United States; United States. United States Arbitration Act; United States. Indian Gaming Regulatory Act; Revenue sharing -- Wisconsin; Jurisdiction -- United States; Sovereign immunity -- Ho-Chunk Nation of Wisconsin.

*Issues: (1) Did Congress, when it enacted 25 U.S.C. § 2710(d)(7)(A)(ii), grant jurisdiction to district courts to enjoin Indian tribes from engaging in class III gaming for any violation of tribal-state compact? (2) Did grant of jurisdiction to district courts contained in 25 U.S.C. § 2710(d)(7)(A)(ii) waive sovereign immunity of Indian tribes to allow tribes to be sued by state for any violation of tribal-state compact, as opposed to only those violations that pertain to playing of class III games? (3) When court has concluded that statute passed for benefit of Indians and Indian tribes is ambiguous, is court compelled by canons of construction established by this court to construe statute in manner most favorable to Indians? (4) When court has concluded that federal statute that abrogates tribal sovereign immunity is ambiguous, is court compelled by canons of construction established by this court for abrogations and waivers of tribal sovereign immunity to construe abrogation narrowly?

History: Petition for certiorari was filed on 5/13/2008.

*Holding below: Wisconsin v. Ho-Chunk Nation, 512 F.3d 921 (District court has jurisdiction, and Congress abrogated Indian tribe's sovereign immunity, with respect to Wisconsin's claim under Indian Gaming Regulatory Act that sought to enjoin tribe's class III gaming, previously allowed under class III gaming compact between tribe and state, due to tribe's alleged refusal to submit to binding arbitration of compact disputes, given that (i) IGRA jurisdictional provision at 25 U.S.C. § 2710(d)(7)(A)(ii) states that federal district courts shall have jurisdiction over "any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact entered into under paragraph (3) that is in effect," (ii) referenced "paragraph (3)" governs negotiation process that tribes and states are to enter into for compacting under IGRA, (iii) paragraph (3)(C) lists seven matters that tribal-state compact negotiated under IGRA may address, including provisions "relating to-- ... remedies for breach of contract," and (iv) Wisconsin's amended complaint alleges that tribe violated compact by refusing to submit to binding arbitration in violation of compact's dispute resolution provision--matter clearly within paragraph (3)(C)'s description.

Back to Top


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

Copyright 2000-2008 by The Bureau of National Affairs, Inc. (800-372-1033).

Back to Top

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map