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2010-2011 Supreme Court Term: October 2010 - July 2011

Covering: Supreme Court cases from the 2010 term impacting Native Americans

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4 Native American law cases decided by the U.S. Supreme Court in the 2010-2011 term.

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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.

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United States v. Jicarilla Apache Nation
2011 WL 2297786
Briefs and Pleadings
Docket No. 10-382
Oral Argument Preview (Cornell University)

Subjects: not yet available

*Issues: Does the attorney-client privilege entitle the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe?

The Supreme Court Held: (from Westlaw) The Supreme Court, Justice Alito, held that, even if it were to recognize common law “fiduciary” exception to attorney-client privilege, to prevent trustee from withholding from trust beneficiaries attorney-client communications relating to administration of trust, exception did not extend to federal government in its capacity as “trustee” of Indian funds. Reversed and remanded.
Judgment Reversed and Case Remanded.

History: Petition was filed on 9/20/10. Petition was granted on 1/7/11. Oral Argument was on 4/20/11. Decided 6/13/11.

*Holding below: In re United States, 590 F.3d 1305. With respect to discovery of communications between the government and its attorneys relating to Indian trust funds, the United States' relationship with the tribes is sufficiently similar to a private trust to justify adopting the attorney-client privilege's fiduciary exception, under which a fiduciary may not block a beneficiary from discovering information protected under the attorney-client privilege when that information relates to fiduciary matters, including trust management. Accordingly, the United States cannot invoke the attorney-client privilege to deny an Indian tribe's request to discover communications between the government and its attorneys that concern management of an Indian trust, when the United States has not claimed that the government or its attorneys considered a specific competing interest in those communications, such as statutes governing endangered species or natural resources.

Related News Stories: The unique trust relationship between the U.S. and Indian Tribes (SCOTUSBlog) 6/15/11. You can't verify the trust, Supreme Court tells Apache Nation (The Atlantic) 6/13/2011. High Court overturns Tribe's discovery order (Courthouse News Service) 6/13/11. Court rules on for U.S. in Apache case (UPI News) 6/13/11. Preliminary Thoughts on Jicarilla Oral Argument (TurtleTalk) 4/20/11. Preview of US v. Jicarilla Apache (SCOTUSBlog/ABA) 4/15/11. Supreme Court Hearing in Jicarilla Apache Trust Case on April 20 (Indianz.com) 4/4/11. SCOTUSBlog lists US v. Jicarilla Apache as Petition to Watch (SCOTUSBlog) 12/22/10. SCOTUSBlog lists US v. Jicarilla Apache as a Petition of the Day (SCOTUSBlog) 10/7/10.

United States v. Eastern Shawnee
2011 WL 1631039
Briefs & Pleadings
Docket No. 09-1521

Subjects: not yet available

*Issues: Does 28 U.S.C. § 1500 deprive the Court of Federal Claims of jurisdiction over a claim seeking monetary relief for the government's alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts that seeks relief paralleling the relief available in the Court of Federal Claims?

Holding: Judgment Vacated and Case Remanded.

History: Petition was filed on 6/15/10. Petition was granted and case decided on 5/2/11.

*Holding below: Eastern Shawnee Tribe of Oklahoma v. United States, 582 F.3d 1306, A suit filed in the Court of Federal Claims seeking relief that is not sought in a suit filed by the same plaintiff in a federal district court, and that the district court cannot award, is not barred by 28 U.S.C. § 1500, which provides that the Court of Federal Claims "shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States." Accordingly, Section 1500 does bar an Indian tribe's suit in the Court of Federal Claims that, although arising from the same set of operative facts as a suit that it had filed eight days earlier in a federal district court, seeks consequential damages that are not sought in the district court and that the district court cannot award. The tribe's district court complaint seeks only an accounting of its trust assets from the government and disavows at least some claims for money damages, stating that the tribe "may have claims to damages that cannot be ascertained" until after the government makes an accounting of the tribe's trust property and accounts and that "[s]ome of these claims, should they exist, will have to be filed in the United States Court of Federal Claims."

Related News Stories: Another Indian Tribe loses claims court case (Courthouse News Service) 5/2/11.

United States v. Tohono O'odham Nation
2011 WL 1543329
Briefs & Pleadings
Docket No. 09-846
Oral Argument Preview
(Cornell University)

Subjects: Tribal Trust Funds, Breach of Trust, Mineral leases - Royalities, Conservation of Natural Resources, Tohono O'odham Nation of Arizona

*Issues: (from Westlaw) Indian tribe brought action against the United States, alleging that the government breached its fiduciary duties as trustee of various funds and property owned by the tribe. The Court of Federal Claims, Eric G. Bruggink, J., 79 Fed.Cl. 645, entered order dismissing the tribe's action due to its separate action against the government in district court. The tribe appealed. The United States Court of Appeals for the Federal Circuit, Linn, Circuit Judge, 559 F.3d 1284, reversed and remanded. Certiorari was granted.

The Supreme Court Held:
(from Westlaw) The United States Supreme Court, Justice Kennedy, held that:
(1) two lawsuits are “for or in respect to” the same claim, precluding jurisdiction in the Court of Federal Claims, if they are based on substantially the same operative facts, regardless of the relief sought in each suit, and
(2) the substantial overlap in operative facts between the tribe's two suits precluded jurisdiction in the Court of Federal Claims.
Reversed and remanded.
Justice Sotomayor, with whom Justice Breyer joined, filed an opinion concurring in the judgment.
Justice Ginsburg filed a dissenting opinion. J
ustice Kagan took no part in the consideration or decision of the case.

History: Petition was filed on 01/15/10. Petition was granted on 4/19/10. Oral Argument was on 11/1/10. Decided 4/26/11.

*Holding below: Tohono O'Odham Nation v. United States, 559 F.3d 1284 Under 28 U.S.C. § 1500, the United States Court of Federal Claims lacks jurisdiction over "any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States." In Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. (en banc) 1994), the Federal Circuit held that Section 1500 applies only if two claims "arise from the same operative facts" and "seek the same relief." The thrust of the claims brought by the Tohono O'odham Nation in district court indicated that the plaintiff was seeking a declaration that the United States was in breach of its duties as a trustee and the specific performance of those duties. The relief sought is entirely equitable, and includes an accounting, a restatement of trust account balances in conformity with the accounting, and any "equitable relief that may be appropriate (e.g., disgorgement [or] equitable restitution ...)." In the claims court, the plaintiff's complaint, filed one day after the district court complaint, seeks only damages at law for "gross breaches of trust" and requests no injunctive or equitable relief. Accordingly, because the relief requested in each complaint is different from the other, Section 1500 does not divest the claims court of jurisdiction, and the claims court erred by dismissing the action for lack of subject matter jurisdiction.

Related News Stories: Opinion Analysis: The many faces of judicial minimalism (SCOTUSBlog) 4/29/11. Commentary on the Tohono O'odham Decision (TurtleTalk) 4/27/11. Court: Tribe can't sue in dual courts (Associated Press) 4/26/11. Tribe can't have two suits over the same problem (Courthouse News Service) 4/26/2011. U.S. v. Tohono O’odham Oral Argument Recap (TurtleTalk Blog) 11/2/10. Supreme Court takes up Tohono O'odham Nation trust law dispute (Indianz.com) 11/02/10. CFC jurisdiction over claims pending in federal court (SCOTUSBlog) 10/29/10. Federal Circuit ruling in Tohono O'odham trust case (Indianz.com) 3/16/09.

Madison County v. Oneida Indian Nation
2011 WL 55360
Briefs & Pleadings
Docket No. 10-72

Subjects: not yet available

*Issues: (1) Does tribal sovereign immunity from suit, to the extent it should continue to be recognized, bar taxing authorities from foreclosing to collect lawfully imposed property taxes? (2) Was the ancient Oneida reservation in New York disestablished or diminished?

Holding: Judgment Vacated and Case Remanded.

History: Petition was filed on 7/9/10. Petition was granted on 10/12/10. Oral Argument set for 2/23/11. Decided 1/10/11.

*Holding below: Oneida Indian Nation v. Madison County, 605 F.3d 149. The Oneida Indian Nation of New York, a federally recognized tribe, is immune from suit under the doctrine of tribal sovereign immunity, which exposes a tribe to suit only when Congress has authorized the suit or when the tribe has waived its immunity. Because neither condition is applicable in this case, the tribe is immune from foreclosure, for nonpayment of county taxes, by two New York counties on parcels of land within the boundaries of a reservation once occupied by the Oneidas, that were sold to non-Indians during the early 19th century and repurchased by the tribe on the open market in the early 1990s, thereby coming under the sovereign dominion of the tribe, even though the U.S. Supreme Court held, in Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197, 73 U.S.L.W. 4242 (2005), that these parcels are not exempt from local taxation. A tribe's immunity from suit is independent of its lands, and thus the court need not reach the counties' argument that the tribe's reservation has been disestablished, which would render the land in question no longer part of a reservation or otherwise part of Indian country, because the holding in this case does not depend on the resolution of that issue. Accordingly, this court's prior holding on that issue--that the Oneidas' reservation was not disestablished--remains controlling law of the circuit.

Related News Stories: Supreme Court issues an order vacating the opinion and remanding Madison County v. Oneida Indian Nation of New York to the U.S. Court of Appeals for the Second Circuit (NARF Supreme Court Project) 1/10/11. U.S. Supreme Court to hear Oneida Indian Nation foreclosure case (Utica Observer-Dispatch) 10/12/10. Madison County v. Oneida Indian Nation named Petition to Watch for this week’s conference (SCOTUSBlog) 10/5/10.

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No Native American law cases granted review were left pending in the 2010-2011 term.

 

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6 petitions for writ of certiorari were left pending in the 2010-2011 term. See the 2011-2012 bulletin for possible carryover.

Arctic Slope Native Association v. Sebelius
Briefs and Pleadings
Docket No. 11-83

Subjects: not yet available

*Issues: (from the petition for a writ of certiorari) Question Presented: Whether the Federal Circuit erred in holding, in direct conflict with the Tenth Circuit, that a government contractor which has fully performed its end of the bargain has no remedy when a government agency overcommits itself to other projects and, as a result, does not have enough money left in its annual appropriation to pay the contractor.

History: Petition was filed on 7/18/11.

*Holding below: Arctic Slope Native Association, Ltd. v. Sebelius, 629 F.3d 1296. (From Westlaw) The Court of Appeals, Dyk, Circuit Judge, held that:
(1) “not to exceed” language in appropriations acts imposed statutory cap on HHS's obligations;
(2) availability of funds provision in contract, coupled with appropriations acts, limited HHS's obligations to appropriated amounts; and
(3) contract expressly warned association of risk that funding would be inadequate to fully fund HHS's obligations.
Affirmed.

Gila River Indian Community v. Lyon
Briefs and Pleadings
Docket No. 11-80

Subjects: not yet available

*Issues: (from the petition for a writ of certiorari) Questions Presented: (1) Whether under Federal Rule of Civil Procedure 19(b), courts may adjudicate and compromise legal rights in land to which the United States holds title without the United States’ participation in the litigation. (2) Whether, in light of this Court’s recent decision in United States v. Jicarilla Apache Nation, No. 10-382 (June 13, 2011), the Ninth Circuit properly held, as a matter of law, that litigation compromising the United States’ title in land can proceed in the United States’ absence as long as an Indian tribe is a party to the litigation.

History: Petition was filed on 7/15/11.

*Holding below: Lyon v. Gila River Indian Community, 626 F.3d 1059. (From Westlaw) The Court of Appeals, Wallace, Senior Circuit Judge, held that:
(1) the United States was not a necessary party to the dispute over the tribe's aboriginal title claim;
(2) the United States was not an indispensable party to adjudication of claims regarding trustee's rights of access to the parcel;
(3) individual Indian allottees of land surrounding the parcel were not indispensable parties;
(4) trustee's claim of a pre-existing easement to access the parcel was not preempted by regulatory scheme for obtaining new easements over Indian lands;
(5) the district court properly implied an easement to the parcel in the federal government's grant of the parcel to Arizona as part of a school land grant, and that easement was not disturbed by the subsequent expansion of the reservation;
(6) the district court erred in refusing to take judicial notice of official action taken by the Bureau of Indian Affairs (BIA) in removing relevant section of road from the Indian Reservation Road (IRR) inventory;
(7) the district court erred in applying laches to conclude that a section of road was an IRR;
(8) trustee had standing to assert his claim that the roads in question were “public roads” under a now-repealed federal statute;
(9) trustee failed to show that Arizona established the roads in question as public highways crossing public lands, as required for them to fall within the subject statute;
(10) tribe's aboriginal title to the parcel was extinguished when the federal government conveyed the land to Arizona; and
(11) issue of whether tribe had zoning authority over parcel was not ripe for decision.
Affirmed in part; vacated and remanded in part.

Oneida Indian Nation v. County of Oneida
Briefs and Pleadings
Docket No. 10-1420

Subjects: not yet available

*Issues: Did the court of appeals contravene this court's decision in Oneida Indian Nation of New York v. County of Oneida, 470 U.S. 226 (1985), and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), by ruling that "equitable considerations" rendered petitioners' claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio? Did the court of appeals impermissibly encroach on the legislative power of Congress by relying on "equitable considerations" to bar petitioners' claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue?

History: Petition was filed on 5/16/11.

*Holding below: Oneida Indian Nation of New York v. County of Oneida, 617 F.3d 114. Equitable considerations bar Native American tribal claims, premised on the assertion of a continuing right to possession, to approximately 250,000 acres of ancestral tribal lands that were conveyed to the State of New York between 1795 and 1846 in violation of federal law, including the 1793 Trade and Intercourse Act (also known as the Nonintercourse Act), which prohibits the sale of tribal land without the consent of the United States. Although some of the requisite elements of a traditional laches defense have not been established in this case, this omission is ultimately unimportant, because the laches-like equitable defense recognized by controlling precedent does not focus on the elements of traditional laches but rather more generally on the length of time at issue between an historical injustice and the present day, on the disruptive nature of claims long delayed, and on the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to a plaintiff's injury. In City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), the Supreme Court discussed laches not in its traditional application but as one of several pre-existing equitable defenses, along with acquiescence and impossibility, illustrating fundamental principles of equity that precluded the Native American plaintiffs "from rekindling embers of sovereignty that long ago grew cold." The United States' intervention on behalf of the tribes does not change this outcome. Although the United States is traditionally not subject to delay-based equitable defenses under most circumstances, controlling circuit precedent has held, on facts virtually indistinguishable from those here, that "whatever the precise contours of the exception to the rule against subjecting the United States to a laches defense, this case falls within the heartland of the exception." In addition, state sovereign immunity bars the tribes' "nonpossessory" claim, which is a contract-based claim, based on the allegation that New York paid unconscionably inadequate consideration for the original land transfers, that seeks reformation of the original agreements to provide for appropriate compensation. Finally, the alternative nonpossessory claim articulated on appeal, premised on a claim that the initial transfer of the subject land violated the Nonintercourse Act, is also barred by equitable considerations described in Sherrill and circuit precedent, because it would disrupt justified societal interests that have developed over a long period of time.

Related News Stories: Oneida Indian Nation v. County of Oneida named SCOTUSBlog Petition of the Day (SCOTUSBlog) 7/7/11.

United States v. New York
Briefs and Pleadings
Docket No. 10-1404

Subjects: not yet available

*Issues: May the United States be barred from enforcing the Nonintercourse Act against a state that repeatedly purchased and resold (at a substantial profit) Indian lands in violation of the act between 1795 and 1846, based on the passage of time and the transfer of the unlawfully obtained Indian lands into hands of third parties, when the United States seeks monetary relief only against the state?

History: Petition was filed on 5/16/11.

*Holding below: Oneida Indian Nation of New York v. County of Oneida, 617 F.3d 114. Equitable considerations bar Native American tribal claims, premised on the assertion of a continuing right to possession, to approximately 250,000 acres of ancestral tribal lands that were conveyed to the State of New York between 1795 and 1846 in violation of federal law, including the 1793 Trade and Intercourse Act (also known as the Nonintercourse Act), which prohibits the sale of tribal land without the consent of the United States. Although some of the requisite elements of a traditional laches defense have not been established in this case, this omission is ultimately unimportant, because the laches-like equitable defense recognized by controlling precedent does not focus on the elements of traditional laches but rather more generally on the length of time at issue between an historical injustice and the present day, on the disruptive nature of claims long delayed, and on the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to a plaintiff's injury. In City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), the Supreme Court discussed laches not in its traditional application but as one of several pre-existing equitable defenses, along with acquiescence and impossibility, illustrating fundamental principles of equity that precluded the Native American plaintiffs "from rekindling embers of sovereignty that long ago grew cold." The United States' intervention on behalf of the tribes does not change this outcome. Although the United States is traditionally not subject to delay-based equitable defenses under most circumstances, controlling circuit precedent has held, on facts virtually indistinguishable from those here, that "whatever the precise contours of the exception to the rule against subjecting the United States to a laches defense, this case falls within the heartland of the exception." In addition, state sovereign immunity bars the tribes' "nonpossessory" claim, which is a contract-based claim, based on the allegation that New York paid unconscionably inadequate consideration for the original land transfers, that seeks reformation of the original agreements to provide for appropriate compensation. Finally, the alternative nonpossessory claim articulated on appeal, premised on a claim that the initial transfer of the subject land violated the Nonintercourse Act, is also barred by equitable considerations described in Sherrill and circuit precedent, because it would disrupt justified societal interests that have developed over a long period of time.

Reed v. Gutierrez
Briefs & Pleadings
Docket No. 10-1390

*Issues: Should the doctrine of tribal sovereign immunity be abrogated? Even if the doctrine of tribal sovereign immunity should not be abrogated, should it bar claims against Indian tribes or their employees for their off-reservation torts?

History: Petition was filed on 5/10/11.

*Holding below: Reed v. Gutierrez , 2011 WL 1821576. Under Kiowa Tribe of Oklahoma v. Manufacturing Technologies Inc., 523 U.S. 751 (1998), tribal sovereign immunity shields a Native American pueblo from liability for an off-reservation tort--specifically, a tribal employee improperly turned a vehicle owned by the pueblo into oncoming traffic while conducting tribal business within the scope of his employment and thereby injured the plaintiffs. Without an unequivocal and express waiver of sovereign immunity or congressional authorization of suits against tribes, tribal entities are immune from suit both on and off tribal reservations. States may not abrogate tribal immunity in any way. The contention that tribal immunity should not extend to the employee will not be addressed because the plaintiffs do not support their argument with citation to authority, and because it was raised for the first time in a reply brief.

Navajo Nation v. Equal Employment Opportunity Commission
Briefs & Pleadings
Docket No. 10-981

*Issues: (1) May the sovereign immunity of the United States and of a federally recognized Indian tribe, preserved in Title VII of the 1964 Civil Rights Act, be abrogated by application of Fed. R. Civ. P. 14 and 19? (2) May a court use Rule 14 to permit or require a party to implead the secretary of the interior in a case in which the applicable statute does not confer a right of contribution?

History: Petition was filed on 1/28/11.

*Holding below: Equal Employment Opportunity Commission v. Peabody Western Coal Company, 610 F.3d 1070. First ruling below (EEOC v. Peabody Western Coal Co., 9th Cir., 400 F.3d 774): Under Fed. R. Civ. P. 19, which governs compulsory party joinder in federal district courts, the Navajo Nation is a necessary party to a lawsuit filed by the Equal Employment Opportunity Commission against a coal company that, in accordance with the terms of its leases of the Navajo Nation's mines, maintains a Navajo hiring preference that allegedly violates Title VII of the 1964 Civil Rights Act. Because the EEOC seeks declaratory and injunctive relief, relief would be incomplete unless the Navajo Nation is bound by the res judicata effect of any judgment. In addition, the feasibility of joinder is not defeated by either the Navajo Nation's sovereign immunity or its exemption from Title VII. A tribe's sovereign immunity does not shield it from a suit by the United States or one of its agencies (such as the EEOC), even when Congress has not specifically abrogated tribal immunity, and thus the Navajo Nation cannot assert its sovereign immunity as a defense to joinder. Finally, although Indian tribes are exempt from Title VII, the EEOC is not seeking any affirmative relief directly against the tribe, and Rule 19 does not require a cause of action between a plaintiff and a party whose joinder is sought.
Second ruling below (EEOC v. Peabody Western Coal Co. 9th Cir., 610 F.3d 1070, 109 Fair Empl. Prac. Cas. 993):
The court reaffirms its prior holding, 400 F.3d 774 (9th Cir. 2005), that the Navajo Nation is a necessary party under Rule 19. In addition, the secretary of interior, who insisted that the Navajo hiring preference be included in the mine leases and continues to exercise oversight over the leases, is also a necessary party under Rule 19. The secretary's joinder, however, is not feasible because the EEOC is barred by 42 U.S.C. § 2000e-5(f)(1) from filing suit against a government agency. Moreover, the EEOC's damages claim against the coal company should be dismissed under Rule 19(b), because any third-party complaint under Rule 14(a) by the coal company for indemnification against the secretary would be barred by sovereign immunity, and it would be profoundly unfair to award damages against the coal company while allowing it no redress against the government for complying with a hiring preference inserted in the leases at the government's insistence. The EEOC's claim for injunctive relief against the hiring preference, however, should be permitted to proceed. Under Section 702 of the Administrative Procedure Act, sovereign immunity does not bar prospective injunctive relief against the secretary of interior, and thus, if an injunction were issued against the coal company and the Navajo Nation, they would be permitted to file a third-party complaint under Rule 14(a) against the secretary to enjoin its enforcement of the hiring preference.

Related News Stories: Equal Employment Opportunity Commission v. Peabody Western Coal Company named SCOTUSBlog Petition of the Day (SCOTUSBlog) 5/25/11.


30 petitions for writ of certiorari were denied in the 2010-2011 term.

Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort
Briefs & Pleadings
Docket No. 10-1389

*Issues: (1) In the absence of any congressional legislation, is a business enterprise that performs a nongovernment function entitled to tribal immunity for actions that occur outside of a reservation when a corporation charter provides that the business is a "separate entity" from the tribe and that the tribe shall not be liable for any judgment entered against the business? (2) In determining whether a business enterprise is subject to tribal immunity, should a dispositive factor be if the tribe will be liable for a judgment entered against the enterprise when the justification for the creation of the immunity doctrine was to protect the governmental person that is a sovereign from the inconvenience of a suit?

History: Petition was filed on 5/9/11. Petition dismissed - Rule 46.

*Holding below: Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort , 629 F.3d 1173. A six-part test applies to determine whether economic entities created by a Native American tribe qualify as subordinate economic entities entitled to share in the tribe's sovereign immunity. Specifically, a court must look at (i) the entities' method of creation, (ii) their purpose, (iii) their structure, ownership, and management, including the amount of control the tribe has over the entities, (iv) whether the tribe intended for the entities to have tribal sovereign immunity, (v) the financial relationship between the tribe and the entities, and (vi) whether the policies underlying tribal sovereign immunity and its connection to tribal economic development, including protection of the tribe's money and preservation of tribal cultural autonomy, preservation of tribal self-determination, and promotion of commercial dealings between Indians and non-Indians, are served by granting immunity to the entities. Under these factors, a casino operated for the benefit of a federally recognized Native American tribe, and the tribal authority that owns and operates it, are so closely related to the tribe that they should share in its sovereign immunity. Accordingly, unless they waived their immunity--an issue to be considered on remand--the casino and authority are immune from a lawsuit filed by a provider of business management training and consulting services that alleges that the casino paid for a single-person license for one of the provider's online training programs, but then, without the provider's permission, recorded and used portions of that program to train more than one employee. Whether a judgment against an economic entity would impact the tribe's financial assets is not a dispositive inquiry into how close the tribe and the entity are related, and the district court's decision to treat it as such was error.

Osage Nation v. Irby
Briefs and Pleadings
Docket No. 10-537

Subjects: not yet available

*Issues: In determining whether Congress disestablished an Indian reservation, are express statutory text, unequivocal legislative history, and the expert view of the executive branch controlling, as the Second, Eighth, and Ninth Circuits have ruled, or can other indicia external to the statutory text and federal government's view, such as modern demographics, override unambiguous statutory text, as the Tenth Circuit and Seventh Circuit have held? Did the lower court properly ruled that the Osage Nation's reservation has been disestablished in the absence of unambiguous statutory direction and without obtaining or considering the position of the United States government?

History: Petition was filed on 10/22/10. Petition was denied on 6/27/11.

*Holding below: Osage Nation v. Irby, 597 F.3d 1117. In 1872, Congress established a reservation for the Osage Nation, in what is now Oklahoma, that was incorporated into the new state as Osage County when Oklahoma became a state in 1907. Although the operative language of the 1906 Osage Allotment Act does not unambiguously suggest diminishment or disestablishment of the Osage reservation, the manner in which the act was negotiated reflects clear congressional intent and tribal understanding that the reservation would be disestablished. Among other things, the act was passed at a time when the federal government sought dissolution of the Oklahoma tribes' reservations, and the Osage approached the government in 1905 to begin negotiations for a bill to abolish tribal affairs and to divide tribal land and money fairly among themselves with the realization that the allotment process would terminate reservation status. The legislative history and the negotiation process also make clear that all parties at the table understood that the Osage reservation would be disestablished by the Osage Allotment Act, and uncontested facts in the record provide further evidence of a contemporaneous understanding that the reservation had been dissolved. In addition, after enactment of the Osage Allotment Act, federal officials responsible for the Osage lands repeatedly referred to the area as a "former reservation" under state jurisdiction, and by 1910 Osage Indians represented only 6 percent of the Osage County population. Accordingly, the Osage reservation has been disestablished by Congress.

Related News Stories: Supreme Court refuses Osage Nation case. (NewsOK) 6/27/11. Note from Patricia Millett on the Developments in the Osage Case (TurtleTalk) 2/22/11. Osage Nation v. Irby named SCOTUSBlog Petition to Watch (SCOTUSBlog) 2/18/11. Osage Nation v. Irby named SCOTUSBlog Petition of the Day (SCOTUSBlog) 11/17/10.

Brown v. Rincon Band of Luiseno Mission Indians of the Rincon Reservation
Briefs and Pleadings
Docket No. 10-330

Subjects: not yet available

*Issues: (1) Does a state demand direct taxation of an Indian tribe in compact negotiations under Section 11 of IGRA, when it bargains for a share of tribal gaming revenue for the state's general fund? (2) Did the court below exceed its jurisdiction to determine the state's good faith in compact negotiations under Section 11 of IGRA, when it weighed the relative value of concessions offered by the parties in those negotiations?

History: Petition was filed on 9/3/10. Petition was denied on 6/27/11.

*Holding below: Rincon Band of Luiseno Mission Indians of the Rincon Reservation v. Schwarzenegger, 602 F.3d 1059. California negotiated in bad faith, in violation of the Indian Gaming Regulatory Act, when it repeatedly insisted that a Native American tribe pay a significant portion of its net gaming revenue into the state's general fund as a condition for the state's agreement to expansion of the tribe's gaming operations. The state's demand was an attempt to impose a tax on the tribe in violation of the ban against taxes on Native American gaming set forth in 25 U.S.C. § 2710 (d)(4).

Related News Stories: Supreme Court declines to hear Rincon gambling case (North Country Times) 6/28/11. Supreme Court declines California appeal on Indian casinos (McClatchy Newspapers) 6/27/11. Schwarzenegger v. Rincon Band of Luiseno Mission Indians Named Petition to Watch (SCOTUSBlog) 12/10/10. Commentary on the Schwarzeneggar v. Rincon Band Cert Petition (TurtleTalk Blog) 11/30/10.

Begay v. United States
Docket No. 10-9399

*Issues: not yet available

History: Petition was filed on 3/7/11. Petition was denied on 6/20/11.

*Holding below: United States v. Begay, 622 F.3d 1187. (from Westlaw) The Court of Appeals, Bybee, Circuit Judge, held that:
(1) SORNA required convicted sex offenders to update their sex offender registration with Arizona, and
(2) application of SORNA to offenders violated neither the Due Process Clause nor the Ex Post Facto Clause.
Affirmed.

Yankton Sioux Tribe v. United States Army Corps of Engineers
Briefs & Pleadings
Docket No. 10-1059

*Issues: Should the court hold this petition and then dispose of it as appropriate in light of the court's disposition of other, related petitions that, like this petition, concern the boundaries of the Yankton Sioux reservation?

History: Petition was filed on 2/22/11. Petition was denied on 6/20/11.

*Holding below: Yankton Sioux Tribe v. United States Army Corps of Engineers, 606 F.3d 895. This appeal is resolved in light of this court's decision in Yankton Sioux Tribe v. Podhradsky, 606 F.3d 994 (8th Cir., May 6, 2010), petitions for cert. filed, 79 U.S.L.W. 3442 (U.S. Jan. 18, 2011) (Nos. 10-929, 10-931, 10-932), and 79 U.S.L.W. 3514 (U.S. Feb. 22, 2011) (No. 10-1058). Accordingly, land transfers by the U.S. Army Corps of Engineers to the state of South Dakota under the 1999 Water Resources Development Act did not violate that act, because the transfers included only land located outside the boundaries of the Yankton Sioux Tribe's reservation. Most of such land, although originally within the 1858 boundaries of the reservation and allotted to individual members of the tribe, had passed out of Indian hands prior to its acquisition by the Corps of Engineers for dam construction under the 1944 Flood Control Act, and thus was outside the reservation's diminished boundaries when the Corps of Engineers acquired it. Moreover, such land does not fall within any category of land that, according to Podhradsky, remains within the external boundaries of the tribe's reservation. Finally, although a few tracts of land were indeed allotted land held in trust for the benefit of individual tribal members when they were acquired in condemnation proceedings by the Corps of Engineers about 60 years ago, the tribe concedes that the United States held fee title to these lands when the Water Resources Development Act was enacted and the tracts were subsequently transferred to South Dakota, and thus they too were outside the reservation boundaries.

South Dakota v. Yankton Sioux Tribe
Briefs and Pleadings
Docket No. 10-929

Subjects: not yet available

*Issues: Did the Act of 1894 disestablish the Yankton Sioux Reservation?

History: Petition was filed on 1/18/11. Petition was denied on 6/20/11.

*Holding below: Yankton Sioux Tribe v. Podhradsky, 577 F.3d 951. The law of the case, as determined in Yankton Sioux Tribe v. Gaffey, 188 F.3d 1010 (8th Cir. 1999), cert. denied, 530 U.S. 1261 (2000), continues to control resolution of the dispute over whether the Yankton Sioux Reservation was disestablished by an 1894 statute. Accordingly, the district court did not err by following the mandate of that case that the Yankton Sioux Reservation was merely diminished in size, but not disestablished, by an 1894 statute that ratified an agreement under which the Yankton Sioux Tribe sold to the United States, for white settlement, all of the reservation land that had not been allotted to individual tribal members, which ultimately reduced the tribe's reservation to a checkerboard of individual allotments that were intermingled with white homesteads and other land held in trust by the United States or owned in fee by either Indians or non-Indians.

Related News Stories: Yankton Sioux Chalk Up Supreme Court Win (Indian Country Today) 6/22/11. Daugaard v. Yankton Sioux Tribe named SCOTUSBlog Petition of the Day (SCOTUSBlog) 4/14/11.

Miccosukee Tribe of Indians of Florida v. Kraus-Anderson Construction Company
Briefs and Pleadings
Docket No. 10-717

Subjects: not yet available

*Issues: Does an action to obtain recognition of a tribal court judgment present a federal question under 28 U.S.C. § 1331, based on the common law and the federal character of Indian law, and was the Eleventh Circuit incorrect in its holding, which conflicts with other circuit court and Supreme Court precedents, that the district court lacked subject matter jurisdiction to enforce the Miccosukee tribal court judgment in this case?

History: Petition was filed on 11/29/10. Petition was denied on 6/20/11.

*Holding below: Miccosukee Tribe of Indians of Florida v. Kraus- Anderson Construction Company, 607 F.3d 1268. A federal district court lacks subject matter jurisdiction over an Indian tribe's lawsuit seeking enforcement of a tribal court judgment against a non-Indian party. Under 28 U.S.C. § 1331, which confers on federal district courts original jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States," a suit to domesticate a tribal judgment does not state a claim under federal law, whether statutory or common law, and neither vague assertions by tribal plaintiffs regarding federal common law nor an allegation of the "quintessentially federal character of Native American law" will suffice to support federal question jurisdiction.

Related News Stories: High court won't look at dispute over area tribe's reservation (The Mitchell Daily Republic) 06/21/11. Supreme Court declines to hear tribal court jurisdiction dispute (Indianz.com) 06/21/11. Miccosukee Tribe v. Kraus-Anderson Construction Co. named SCOTUSBlog Petition of the Day (SCOTUSBlog) 1/11/11.

Salt River Project Agricultural Improvement and Power District v. Arizona
Briefs & Pleadings
Docket No. 10M113

*Issues: (from the petition for certiorari) In 1902, Congress passed the Reclamation Act. See Act of June 17, 1902, c. 1093, 32 Stat. 388. Pursuant to that Act, the United States constructed various dams and diversion works on the Lower Salt River in the Territory of Arizona before Arizona became a state on February 14, 1912. Due to the presence of such dams and diversion works, the river was undeniably not “navigable” on February 14, 1912 (regardless of whether it ever was “navigable” before the United States undertook such actions). The Arizona Court of Appeals recently held that, when examining whether the Lower Salt River was navigable at statehood and thus whether the State acquired ownership of the streambed under the “equal footing” doctrine, the courts must ignore the effects of these pre-statehood actions by the United States. Petitioners assert that this decision conflicts with prior decisions of this Court and other state and federal courts and that, under those prior decisions, the effects of pre-statehood federal actions must be considered when determining whether a watercourse was navigable at the time of statehood. The question before this Court on this Petition is, therefore: Where the United States has, prior to statehood and pursuant to the 1902 Reclamation Act, undertaken to dam and divert substantially the entire annual flows of a river to provide water for federal Reclamation purposes, must a court applying the federal test of “navigability” for determining a new state's “equal footing” title take into consideration the impacts of those federal actions on the condition of the river at statehood?

History: Motion of petitioner to direct the Clerk to file a petition for a writ of certiorari out of time filed. on 5/16/11. Motion was denied on 6/13/11.

Rosales v. United States
Briefs & Pleadings
Docket No. 10-1103

*Issues: (1) Must a court decide whether a tribe was under federal jurisdiction in 1934 whenever a tribe claims an interest in Indian trust land adverse to a state or individual's interest in that property? (2) Must a court decide whether a tribe was under federal jurisdiction in 1934 when determining the timeliness of petitioners' Tucker Act claims that the tribe never became a beneficial owner of Indian trust land? (3) Must a court decide whether a tribe was under federal jurisdiction in 1934 in determining whether the tribe was a required, but absent, party claiming an interest in petitioners' beneficial interest in trust property?

History: Petition was filed on 3/7/11. Petition was denied on 5/2/11.

*Holding below: Rosales v. United States. The U.S. Court of Federal Claims' dismissal of two complaints, stemming from internecine disputes among members and putative members of a federally recognized tribal government, is affirmed on the basis of the opinion of the Court of Federal Claims, which held that the plaintiffs' claims were untimely under the Tucker Act, barred by issue preclusion, and/or lacked a necessary party. In addition, Carcieri v. Salazar, 77 U.S.L.W. 4113 (U.S. 2009), is inapplicable to this case because it dealt with the first of three categories of "Indian" in the 1934 Indian Reorganization Act--"all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction"--while this case involves the third category, which is "all other persons of one-half or more Indian blood." Moreover, Carcieri dealt only with the merits of a statutory issue--the meaning of "now under Federal jurisdiction." The only question in the present case, however, is whether the Court of Federal Claims correctly held that it lacked jurisdiction over the two complaints it dismissed for lack thereof; that court decided nothing relating to the "now under Federal jurisdiction" provision. Finally, the expansive statements in Carcieri, made in determining the meaning of the statutory term "now," cannot be applied or extended to cover the jurisdictional issue decided herein.

Native Wholesale Supply v. Oklahoma
Briefs and Pleadings
Docket No. 10-754

Subjects: not yet available

*Issues: (1) Can a contract entered into by an Indian tribe and fully performed outside the exterior boundaries of the state in which the tribe's reservation is located constitutionally subject the out-of-state vendor to the personal jurisdiction of the state in which the tribe's reservation is located? (2) Can a state prohibit an Indian tribe located within its boundaries from purchasing goods from Indians on a reservation outside the state?

History: Petition was filed on 12/3/10. Petition was denied on 4/25/11.

*Holding below: Edmondson v. Native Wholesale Supply, 237 P.3d 199. Neither federal due process nor Oklahoma's long-arm statute was violated when an Oklahoma state court asserted personal jurisdiction over an out-of-state tobacco company that was sued by the state for violating a state law when it sold and shipped cigarettes to a tribal wholesaler in Oklahoma, with which it has an ongoing business relationship, that then sold the cigarettes to retailers, located both on and off tribal land, who subsequently sold most of the cigarettes to the general public rather than to tribal members. The sheer volume of cigarettes sold and shipped to the tribal wholesaler was such that the ultimate destination could only be the general public in Oklahoma, and the out-of-state vendor reaps a hefty financial reward for delivering its products into the stream of commerce that brings them into Oklahoma.

Winnemucca Colony Council v. Wasson
Briefs & Pleadings
Docket No. 10-1011

*Issues: (1) Did the district court exceed its powers by interjecting itself into the fray of competing tribal factions within a single tribal government to determine which faction shall have control over tribal treasury resources, thereby imputing governmental control of the tribe to that faction in contradiction to policies of self-determination and self-governance under 25 U.S.C. § 450n and other individual sections of the Indian Self Determination Act? (2) Did the Ninth Circuit err, under 25 U.S.C. § 450b(1), in upholding the district court's order awarding tribal funds to a faction unrecognized by the U.S. Department of Interior's Board of Indian Appeals but purporting to be the legitimate governing body of the tribe even though the faction was not democratically elected by eligible voters of the Indian community?

History: Petition was filed on 2/7/11. Petition was denied on 4/18/11.

*Holding below: Bank of America v. Swanson, 400 Fed.Appx. 159. In this dispute between two tribal factions--the Bills Group and the Wasson Group--over control of a bank account, the parties exhausted their tribal remedies when the Inter-Tribal Court of Appeals determined in 2007 that it lacked appellate jurisdiction. The district court then properly ruled that the 2002 decision of a special appellate panel (the Minnesota Panel) that emerged from the Ninth Circuit's mediation process was binding and nonappealable, and that, on the basis of the panel's ruling, summary judgment should be awarded to the Wasson Group. A decision by a tribal judge that the Bills Group urges the court to enforce is not entitled to recognition because it is inconsistent with the parties' choice of forum, both parties having stipulated to the appointment of the Minnesota Panel to hear argument and to issue a binding, nonappealable decision.

Henzler v. Salazar
Briefs and Pleadings
Docket No. 10-942

Subjects: not yet available

*Issues: Did the Ninth Circuit correctly hold, in conflict with decisions of this court and the Interior Board of Land Appeals, that divesting a Native American who the Department of Interior knows is illiterate of a vested property right by mailing the individual a written notice whose content did not inform the individual of his legal rights when the department knew that the individual could not reasonably have been expected to educate himself about those rights did not violate the Due Process Clause of the Fifth Amendment?

History: Petition was filed on 1/14/11. Petition was denied on 3/21/11.

*Holding below: Henzler v. Salazar, 393 Fed.Appx. 457. The district court's determination that the plaintiff heirs failed to present credible evidence raising a factual issue related to due process and the 1930 rejection of the allotment application of their decedent, an Alaska Native, and that minimum requirements were met when the decedent's file was closed, is affirmed. By failing to present credible evidence raising a factual issue related to due process, the plaintiffs failed to establish a colorable claim that their decedent was denied procedural due process..

Yellowbear v. Wyoming
Briefs and Pleadings
Docket No. 10-7881

Subjects: not yet available

*Issues: (from the petition for a writ of certiorari) Andrew John Yellowbear, Jr., a member of the Northern Arapaho Tribe, was tried for murder, convicted, and sentenced to life imprisonment without possibility of parole by the State of Wyoming for a crime which occurred within the Wind River Reservation, which has never been disestablished. The federal government has exclusive jurisdiction over major crimes committed by Indians in “Indian country.” 18 U.S.C. § 1153. “Indian country” includes “all Indian allotments, the Indian titles to which have not been extinguished” and “all land within the limits of any Indian reservation.” 18 U.S.C. § 1151(c), (a). The Questions Presented are:
(1) Whether the rescission and voidance of extradition and the declaratory judgment of the Shoshone and Arapaho Tribal Court of the Wind River Reservation operated to preclude state jurisdiction to try Mr. Yellowbear for murder.
(2) Whether the crime was committed in Indian Country because the Wind River Reservation, though opened for settlement, has never been disestablished, such that by Act of Congress, only a federal court had or has jurisdiction to try Mr. Yellowbear for its commission.
(3) Whether the doctrine of issue preclusion means that the situs of the crime has been finally adjudicated to be Indian County by the decision of the Supreme Court of Wyoming in In re: The General Adjudication of All Rights to Use Water in the Big Horn River System and all Other Sources, 753 P.2d 76 (Wyo. 1988).
(4) Whether the District Court erred in denying an evidentiary hearing on the issue of whether the situs of the crime was Indian Country on the basis of improper deference to the state court ruling, through misapplication of the provisions of 28 U.S.C. § 2254(d)(1) in violation of the Supremacy Clause, and subsequently through a clearly erroneous conclusion that the State Court ruling was “objectively reasonable,” such that merits review should have been undertaken rather than precluded.

History: Petition was filed on 12/2/10. Petition was denied on 2/22/11.

*Holding below: Yellowbear v. Attorney General of the State of Wyoming, 380 Fed.Appx. 740. (from Westlaw) The Court of Appeals, Neil M. Gorsuch, J., held that state-court's determination that crime did not occur on Indian reservation was not an unreasonable application of federal law.
Affirmed.

Day v. Apoliona
Briefs and Pleadings
Docket No. 10-811

Subjects: not yet available

*Issues: May officials of the State of Hawaii expend funds subject to the trust established by Section 5(f) of the Hawaii Admission Act for the betterment of Hawaiians without regard to the blood quantum established by Section 201(a)(7) of the 1920 Hawaiian Homes Commission Act?

History: Petition was filed on 10/25/10. Petition denied on 2/22/11.

*Holding below: Day v. Apoliona, 616 F.3d 918. Although Section 5(f) of the Hawaii Admission Act calls for the state to hold certain lands and related profits in "public trust" for five enumerated purposes, including "the betterment of the conditions of native Hawaiians, as defined in the Hawaiian Homes Commission Act," the trustees (of a state agency that administers a portion of the public trust's proceeds) are not required to ensure that any given expenditure benefits native Hawaiians exclusively, or that a given expenditure will provide only "collateral benefits" to nonbeneficiaries or purposes not listed in the trust. The trustees need only ensure that each expenditure "is one that would ... be accepted as reasonable by persons of prudence."

Eagle v. Yerington Paiute Tribe
Briefs and Pleadings
Docket No. 10-5764

Subjects: not yet available

*Issues: (from the petition for a writ of certiorari) Questions Presented: Does the Due Process Guarantee made applicable to Indian Tribes under 25 U.S.C. §1302(8) (the Indian Civil Rights Act) or the Fifth Amendment Protections applicable to all citizens – require – before an individual may be deprived of her liberty that the prosecuting Tribe allege and prove beyond a reasonable doubt that the charged defendant comes within the limited class of individuals who have the political status of an Indian as defined in 25 U.S.C. § 1301(4) and are thus within the limited subject matter jurisdiction of the Tribe?

History: Petition was filed on 8/2/10. Petition was denied on 1/24/11.

*Holding below: Eagle v. Yerington Paiute Tribe, 603 F.3d 1161. (from Westlaw) The Court of Appeals, Thompson, Senior Circuit Judge, held that Indian Tribe was not required to plead and prove petitioner's Indian status beyond a reasonable doubt.
Affirmed.

Attorney's Process and Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa
Briefs & Pleadings
Docket No. 10-613

Subjects: not yet available

*Issues: (1) Do the orders from the BIA and NIGC establish that the Walker Council had authority to control the casino and enter the contract, such that the tribe's claims must be arbitrated, not litigated in tribal court? (2) Does the tribal court lack jurisdiction over the tribe's claims that the petitioner committed tribal-law torts by entering into the casino, investigating the dissident's illegal operation of the casino, and receiving payments from the Walker Council?

History: Petition was filed on 11/4/10. Petition was denied on 1/18/11.

*Holding below: Attorney's Process and Investigation Services, Inc. v. Sac & Fox Tribe of the Mississippi in Iowa, 609 F.3d 927. Although tribal efforts to regulate the conduct of nonmembers are presumptively invalid, two narrow exceptions to this rule were created by Montana v. United States, 450 U.S. 544 (1981), one of which permits a Native American tribe to retain authority over nonmember conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." A raid on a tribe's casino and its tribal government offices by agents of a firm that provides security and consulting services to casino operators, conducted pursuant to a contract the firm had signed with the putative chairman (Walker) of the tribal council (who had been defeated in a special tribal election prior to signing the contract), threatened the tribe's health and welfare, its political integrity and economic security, and its rights as a landowner. As alleged by the tribe, the raid was conducted by approximately 30 agents of the security firm who, while armed with batons and at least one firearm, forced their way into the buildings (all of which are located on tribal trust land) without permission of the newly elected tribal officials, seized sensitive information related to the tribe's finances and gaming operations, and damaged tribal property, all with the apparent goal of seizing control of the tribal government and economy by force and returning the Walker-led council to power despite its rejection by tribal voters. Accordingly, the tribe retains inherent power under Montana to regulate this conduct, and the tribal courts may exercise jurisdiction over the claims that arose out of that conduct. No jurisdictional significance arises from the fact that the Bureau of Indian Affairs and the National Indian Gaming Commission still recognized the Walker-led council at the time of the raid; these federal agencies are without power to interfere in an intratribal governance dispute, and their recognition could not give the security firm license to do what the agencies themselves could not. However, the tribe's claim for conversion of tribal funds, which arises out of the payment of tribal funds prior to the raid to the security firm under its contract with the Walker-led council, is materially different from the other alleged torts, does not appear to have arisen directly from what occurred during the raid or other actions occurring on tribal land, and thus is not encompassed by the Montana exception discussed above. The conversion claim is remanded so that the district court may consider whether tribal jurisdiction exists under the other of the two Montana exceptions, which recognizes tribal power to regulate nonmembers when they "enter consensual relationships with the tribe or its members." Finally, the district court properly deferred to the tribal courts' determination that the contract between the Walker-led council and the security firm did not bind the tribe. Tribal governance disputes are controlled by tribal law and fall within the exclusive jurisdiction of tribal institutions. Because the tribe did not enter into any valid agreement with the security firm, it has not waived its sovereign immunity, and it is therefore immune from suit on the putative contract. The district court therefore did not err in dismissing the security firm's claim for enforcement of the arbitration agreement contained in the contract.

Thunderhorse v. Pierce
Briefs and Pleadings
Docket No. 09-1353

Subjects: not yet available

*Issues: Did the court of appeals misinterpret the RLUIPA to require only a minimal showing that a prison grooming rule that concededly imposes a substantial burden on religious exercise is the "least restrictive means of furthering [a] compelling governmental interest," contrary to the decisions of other circuits and the literal terms of the statute?

History: Petition was filed on 5/4/10. Petition was denied on 1/10/11.

*Holding below: Thunderhorse v. Pierce, 364 Fed. Appx. 141.Circuit precedent forecloses a Native American prisoner's claims (i) that the prison grooming policy to which he is subject violates his rights under the Religious Land Use and Institutionalized Persons Act to grow his hair and (ii) that arbitrary enforcement of the policy means that the policy cannot satisfy the RLUIPA requirement that it be the least restrictive means of achieving the goal of maintaining prison security. The prison's ban on the inmate's performing pipe ceremonies in his cell is the least restrictive way to prevent inmates from starting fires in their cells, and thus does not violate RLUIPA.

Related News Stories: SCOTUSBlog lists Iron Thunderhorse v. Pierce as Petition to Watch (SCOTUSBlog) 12/22/10

Glacier Electric Cooperative, Inc. v. The Estate of Sherburne
Briefs and Pleadings
Docket No. 10-408

Subjects: not yet available

*Issues: Does preclusion of the issue of tribal subject-matter jurisdiction to hear a case bar the federal courts from considering whether respondents may enforce in tribal court the relief they were granted there--a substantial money judgment--despite the lack of due process at the trial?

History: Petition was filed on 9/22/10. Petition was denied on 11/29/10.

*Holding below: Glacier Electric Cooperative, Inc. v. The Estate of Sherburne, 2010 WL 2640316. A litigant's contention that a tribal court judgment is void for lack of subject-matter jurisdiction was fully litigated by the district court in 1998 during a different but related lawsuit between these same parties. Because the issue of subject-matter jurisdiction was actually litigated in that case, was determined by a valid and final judgment, was essential to the judgment, and was never disturbed, the district court properly concluded that res judicata precludes the litigant from relitigating the tribal court's subject-matter jurisdiction in this proceeding.

Board of Directors of the Truckee-Carson Irrigation District v. United States
Briefs and Pleadings
Docket No. 10-396

Subjects: not yet available

*Issues: (1) Does Congress violate the separation of powers doctrine under Article III by enacting retroactive legislation that requires a court to accept a past federal regulation as currently valid, enforceable, and immune from judicial challenge, the underlying premise of which was previously found by an all-inclusive federal water rights adjudication proceeding as violating vested water rights confirmed under a final federal district court water decree and judgment? (2) Does a federal court have either the legal or equitable jurisdiction to make an award of prejudgment or post-judgment in-kind interest, that is, interest that is payable in property, in this case water as interest, and not money?

History: Petition was filed on 9/20/10. Petition was denied on 11/29/10.

*Holding below: United States v. Bell, 602 F.3d 1074. The 1990 Fallon Paiute Shoshone Indian Tribes Water Rights Settlement Act was intended to resolve an ongoing dispute between the Truckee-Carson Irrigation District, which manages water diversions from the Truckee and Carson Rivers, and the Indian tribe that controls Pyramid Lake, into which the Truckee naturally flows. The act, which also states that the department of interior shall ensure compliance with all of the interior department's operating criteria and procedures for the Newlands Project (which controls the diversions and is managed by the TCID under a contract with the government), unambiguously authorizes the government to seek recoupment, through a judicially enforceable cause of action, of water previously diverted by the TCID in excess of the amounts permitted by the operating criteria and procedures that the government had imposed to limit diversions from the Truckee River. The district court's award of post-judgment interest, payable in water, is vacated and remanded for further consideration, because such an award is unprecedented in the lower courts, and because the district court did not explain the factual basis for the award. Post-judgment interest, payable in water, on the outstanding balance of water due, is not appropriate unless there is some factual basis for awarding more water than was originally taken so as to provide complete relief. The district court should also explain the reason for selecting a particular rate of water interest. If the district court determines on remand that post-judgment water interest is appropriate, then it should also order appropriate prejudgment water interest.

Miccosukee Tribe of Indians of Florida v. South Florida Water Management District, et al.
Briefs and Pleadings
Docket No. 10-252

Subjects: not yet available

*Issues: (1) Was the Eleventh Circuit's decision, according deference to the EPA's "unitary waters" theory regulation, contrary to the Clean Water Act's unambiguous language, which as this court suggested in South Florida Water Management District v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), prohibits the transfer or discharge of a pollutant from one meaningfully distinct body of water to another without an NPDES permit? (2) Did the court of appeals' decision violate the separation of powers doctrine by effectively allowing the manipulation of a federal lawsuit by an agency of the executive branch?

History: Petition was filed on 8/19/10. Petition was denied on 11/29/10.

*Holding below: Friends of the Everglades v. South Florida Water Management District, 570 F.3d 1210. The Environmental Protection Agency reasonably construed ambiguous language in the Clean Water Act when it promulgated a regulation in 2008 that provides that transfer of a pollutant from one navigable body of water to another is not the "discharge of any pollutant" within the meaning of the act, which defines "discharge" as "any addition of any pollutant to navigable waters from any point source," and which requires a National Pollutant Discharge Elimination System permit prior to any such discharge. Accordingly, under Chevron U.S.A. Inc. v. Natural Resources Defense Council Inc., 467 U.S. 837 (1984), deference should be accorded to the regulation, and, as a result, a water management district need not obtain an NPDES permit prior to pumping highly polluted water from canals that are navigable, and whose pump stations are "point sources," into the navigable Lake Okeechobee. There are two reasonable ways to read the applicable statutory language. One is that it means "any addition ... to [any] navigable waters." The other--the "unitary waters" theory advocated by the defendant water management district and accepted by the EPA--is that it means "any addition ... to navigable waters [as a whole]." The existence of these two reasonable, competing interpretations is the very definition of ambiguity.

Morris v. Nuclear Regulatory Commission
Briefs and Pleadings
Docket No. 10-368

Subjects: not yet available

*Issues: (1) In determining whether public radiation doses from a proposed new uranium mine would exceed regulatory limits, could the NRC interpret 10 C.F.R. § 20.1301(a)(1) to allow it to ignore radioactive emissions from existing uranium mine waste on the mine site? (2) When the NRC, in establishing a groundwater restoration surety for a proposed uranium mine, failed to follow its own criteria for protecting the drinking water on the site, did the NRC violate the AEA's prohibition against licensing operations that are inimical to public health and safety?

History: Petition was filed on 9/15/10. Petition was denied on 11/15/2010.

*Holding below: Morris v. Nuclear Regulatory Commission, 598 F.3d 677. The court denies a petition to review the Nuclear Regulatory Commission's issuance of a license to conduct in situ leach uranium mining on four sites in northwest New Mexico, and upholds the NRC's licensing decision in all respects. In considering the license application, the NRC was required by its regulations, specifically 10 C.F.R. § 20.1301(a)(1), to consider only the negligible amount of airborne radiation expected to result from the applicant's "licensed operation," and did not need to aggregate that minute amount of airborne radiation with the existing radioactive emissions from the debris and waste, left by an abandoned, conventional mining operation, that already emitted a greater amount of airborne radiation at the licensed site than the NRC regulations allow. In addition, the NRC did not violate the requirement of the Atomic Energy Act that it not license operations that would be "inimical to ... the health and safety of the public" when it imposed only a nine-pore-volume requirement (a measure of the number of times the aquifer will need to be flushed) on the licensee's obligation to restore the groundwater after it finishes mining the first site, before beginning in situ leach mining at any of the other three sites. Nor did it violate the AEA's public-health-and-safety provision when, in requiring that the licensee maintain an adequate financial surety to guarantee that the licensee or, in the licensee's absence, a third party will be financially able to conduct the groundwater restoration, it allowed the licensee to remedy any subsequent deficiency in the surety by increasing the surety during the NRC's annual reviews of the surety amount.

Cottier v. City of Martin
Briefs and Pleadings
Docket No. 10-335

Subjects: not yet available

*Issues: (1) Was the district court's original finding that the plaintiffs had not established one of the threshold factors for a finding of vote dilution under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, properly before the Eighth Circuit upon review of a superseding final judgment in the plaintiffs' favor after remand from a prior panel? (2) Is statistical evidence necessary to prove legally significant racially polarized voting under Thornburg v. Gingles? (3) Do minority voters have an equal opportunity to elect aldermen and alderwomen of their choice when the evidence shows that minority voters have had some success in electing their preferred candidates, but only in nonmunicipal elections, when "minority" voters constitute a majority of the electorate, or when their preferred candidates are white?

History: Petition was filed on 9/1/10. Petition was denied on 11/15/2010.

*Holding below: Cottier v. City of Martin, 604 F.3d 553. The district court properly dismissed a complaint alleging vote dilution in violation of Section 2 of the 1965 Voting Rights Act that was based on a municipal ordinance that, in establishing boundaries for the aldermanic districts within the city, allegedly impaired the ability of Native Americans to participate in the electoral process and to elect representatives of their choice in city elections. The record evidence is not so strong as to generate a definite and firm conviction that the district court mistakenly dismissed the Section 2 claim after finding that the plaintiffs failed to satisfy one of the preconditions to a finding of vote dilution required by Thornburg v. Gingles, 478 U.S. 30 (1986)--that the white majority voted sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate. In addition, for the reasons stated by the district court, the evidence is not sufficient to support a finding that the challenged ordinance was adopted and maintained for a discriminatory purpose. Although this appeal arises from the district court's rulings on a remand from a panel of this court (Cottier I), this en banc court has the power to review the panel decision in Cottier I, and the law of the case does not preclude consideration by this court of the questions decided by the panel, in Cottier I, prior to the district court opinion on a subsequent remand from which this appeal was taken. That this court previously denied a petition for rehearing en banc after ordering a remand is not controlling, because the decision to deny rehearing en banc is purely discretionary, is not a ruling on the merits, and the court retains authority to rehear the matter en banc at a subsequent stage of the proceedings.

Suquamish Indian Tribe v. Upper Skagit Indian Tribe
Briefs & Pleadings
Docket No. 10-33

Subjects: not yet available

*Issues: Is a court implementing an unambiguous court order bound to apply that order according to its plain terms, or should the court instead determine whether the judge who initially issued the order "intended something other than its apparent meaning," as the Ninth Circuit held in this case?

History: Petition was filed on 7/01/10. Petition was denied on 10/18/10.

*Holding below: Upper Skagit Indian Tribe v. Washington, 590 F.3d 1020. An Indian tribe asserting ambiguity in a usual and accustomed fishing grounds determination (U&A) must offer evidence that suggests that the U&A is ambiguous or that the court intended something other than its apparent meaning. That determination is to be based on the record before the district court when it established the defendant tribe's U&A in 1975, but may also include additional evidence if it sheds light on the understanding that the district court had of the geography at the time. The plaintiff tribe met this burden. There was no evidence before the district court in 1975 that the defendant tribe fished or traveled in waters on the eastern side of Whidbey Island in Puget Sound, particularly in Saratoga Passage or Skagit Bay. The district court did not refer to the latter two areas in the defendant tribe's U&A, even though it generally specifically named an area when it intended to include it in the U&A. Even though the district court defined "Puget Sound" in one instance as including Skagit Bay and Saratoga Passage, it does not mean that references to "Puget Sound" in other U&As always includes those same areas. The district court thus did not intend, in 1975, for the defendant's U&A to include Skagit Bay and Saratoga Passage.

Gould v. Cayuga Indian Nation of New York
Briefs and Pleadings
Docket No. 10-206

Subjects: not yet available

*Issues: (1) Did the state supreme court properly interpret federal law on a matter it believed the U.S. Supreme Court had not yet addressed in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York's cigarette sales and excise taxes after 200 years of non-Indian ownership and governance? (2) Did the state supreme court properly hold both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua despite the fact that the Cayuga Indian Nation had ceded all of its land to New York State in 1789, and (ii) the United States did not subsequently disestablish any purported federal reservation?

History: Petition was filed on 8/9/10. Petition was denied on 10/4/10.

*Holding below: Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614. Two convenience stores operated by the Cayuga Indian Nation are located on "qualified reservation" property within the meaning of N.Y. Tax Law § 470(16)(a), because the parcels of land on which they are located are viewed as reservation property under federal law, and thus the tribe is not required to collect and transmit to the state department of taxation sales taxes on cigarettes it sells to tribal members in those stores. The stores are located on land that was part of the tribe's aboriginal reservation, which was recognized by the United States in the 1794 Treaty of Canandaigua. Despite the restriction on the alienability of Indian lands contained in the Nonintercourse Act, in 1795 and 1807, title to the entire reservation had been transferred to the state by 1807 and was subsequently purchased by private successors in interest. Absence of a tribal fee interest, however, is not determinative of reservation status; only Congress has the power to disestablish or diminish a reservation, and every federal court that has examined whether the Cayuga reservation has been disestablished has answered that question in the negative. Moreover, after the tribe purchased the convenience store properties on the open market in 2003, the Bureau of Indian Affairs identified the land in question as within the limits of the Cayuga reservation. Finally, as noted in an amicus brief submitted by the U.S. government, the United States continues to recognize the existence of a Cayuga reservation in New York.

Related News Stories: Supreme Court sides with Cayugas in cigarette tax dispute with Cayuga and Seneca counties (syracuse.com) 10/04/10.

Fort Peck Housing Authority v. Department of Housing and Urban Development
Briefs and Pleadings
Docket No. 10-195

Subjects: not yet available

*Issues: (1) When Congress mandates a definitive number of units to be considered as a factor in an annual funding formula, may the secretary of housing and urban development lawfully impose a regulation that fails to include all of the units in the formula? (2) Does the 2008 amendment of the 1996 Native American Housing Assistance and Self Determination Act following the district court's decision support the district court's ruling that the regulation was invalid prior to the amendment? (3) Does the Tenth Circuit's decision that the secretary may exclude dwelling units from the formula conflict with the decisions of other circuits holding that statutory factors that Congress mandates for consideration by an agency must be considered in full?

History: Petition was filed on 8/4/10. Petition was denied on 10/4/10.

*Holding below: Fort Peck Housing Authority v. Department of Housing and Urban Development, 14 367 Fed.Appx. 884. The appeals court reverses a district court ruling that invalidated a 1998 federal regulation that set forth a formula, used for determining annual block grants to Indian tribes for low-income housing assistance, that based the grants in part on the number of housing units currently owned or operated by the tribe's designated housing entity, and that disqualified from inclusion in the formula housing units that were no longer owned or operated by the tribal housing entity. The district court's conclusion, based on its literal reading of the statutory language, that the 1996 Native American Housing Assistance and Self-Determination Act created a funding "floor" based on the number of each tribe's housing units in 1997, conflicts with the plain language of the statute viewed as a whole, and does not reflect unambiguous congressional intent that the formula be related to current tribal need.

Hoffman v. Sandia Resort and Casino
Briefs & Pleadings
Docket No. 10-4

Subjects: not yet available

*Issues: (1) Does the doctrine of tribal immunity properly bar claims that an Indian casino cheated a non-Indian gambler by refusing to pay a slot machine jackpot? (2) Does the "property damage" under the waiver of immunity in Section 8 of the Tribal Gaming Compact apply only to physical damage to property?

History: Petition was filed on 6/21/10. Petition was denied on 10/4/10.

*Holding below: Hoffman v. Sandia Resort Casino, 148 N.M. 222. Tribal sovereign immunity bars a claim by a patron of an Indian tribe's casino that the tribe wrongfully refused to pay him a gambling prize that he had ostensibly won. Section 8 of the gaming compact between the tribe and New Mexico, which waives the tribe's sovereign immunity from suit for "bodily injury or property damage," provides a limited waiver of sovereign immunity for the claims of casino patrons that are based on physical injury to their persons or their tangible property proximately caused by the gaming enterprise, and does not encompass the injury alleged in this case.

Related News Stories: Supreme Court considers petition in Pueblo casino jackpot case (indianz.com) 8/17/2010. Slot malfunction case submitted to Supreme Court (AP) 8/14/2010.

Maybee v. Idaho
Briefs & Pleadings
Docket No. 09-1471

Subjects: not yet available

*Issues: May a settling state (i.e., a state that participates in the 1998 settlement of the multi-state claims against the nations' four largest tobacco companies) prohibit the sale of certain brands of cigarettes manufactured by tobacco companies that have never been sued, or otherwise alleged or found culpable for conduct giving rise to liability?

History: Petition was filed on 6/1/10. Petition was denied on 10/4/10.

*Holding below: State v. Maybee, 224 P.3d. 1109, A Native American vendor of cigarettes who lives on a reservation in New York and sells cigarettes on the Internet to Idaho consumers is subject to Idaho's Tobacco Master Settlement Agreement Complementary Act, under which he must make qualifying payments into an escrow account (used by the state to offset the cost of tobacco-related health conditions) in order to qualify as a lawful seller of cigarettes in Idaho, and Idaho's Prevention of Minors' Access to Tobacco Act. The Interstate Commerce Clause does not preempt the Complementary Act as applied to the vendor, because it does not treat interstate sellers any differently than it treats intrastate sellers. Similarly, the Indian Commerce Clause does not preempt application of the two Idaho statutes to the vendor, because the statutes regulate only the vendor's off-reservation conduct--selling, and offering for sale, tobacco products in Idaho.

Metlakatla Indian Community v. Sebelius
Briefs & Pleadings
Docket No. 09-1466

Subjects: not yet available

*Issues: (1) Did the Federal Circuit err when it ruled that the limitations period in Section 605(a) of the CDA is not jurisdictional, but then also held that the timely filing of a claim and exhaustion under Section 605(a) is a jurisdictional requirement that has to be met before class action tolling may apply to that very same limitations period? (2) Did the Federal Circuit err in holding that a potential class member must take action to establish class action court jurisdiction over that potential class member's claim in order for that same class member to obtain the benefit of class action limitations tolling?

History: Petition was filed on 6/1/10. Petition was denied on 10/4/10.

*Holding below: Metlakatla Indian Community v. Sebelius, 583 F.3d 785 Under American Pipe & Constr. Co. v. Utah , 414 U.S. 538 (1974), "class action tolling" of the statute of limitations accrues not only with respect to the named parties, but also with respect to "all asserted members of the class who would have been parties had the suit been permitted to continue as a class action," even when the district court denies class certification. The requirement of Section 605(a) of the Contract Disputes Act that "[e]ach claim by a contractor against the government relating to a contract ... shall be submitted [to a contracting officer] within 6 years after the accrual of a claim," 41 U.S.C. § 605(a), is a prerequisite to suit that a party must satisfy to properly exhaust administrative remedies. It is thus also a requirement for eligibility to be a class member. Accordingly, Indian tribes that failed to submit claims under their contracts with the Indian Health Service within six years of the claims' accrual could not have been class members in either of two district court suits, authorized under the Indian Self-Determination and Education Assistance Act, involving similar claims and filed prior to the tribes' administrative proceeding before the Civilian Board of Contract Appeals. The tribes thus could not invoke class action tolling of the CDA statute of limitations in the CBCA proceeding based on those district court suits. Nevertheless, Section 605(a) is subject to the general presumption that Congress intended equitable tolling to be available unless there is good reason to believe otherwise. It is also a simple provision lacking technical or emphatic language. It is thus subject to equitable tolling. The case is remanded to the CBCA for a determination of whether the limitations period should be tolled under the circumstances of these cases.

Schaghticoke Tribal Nation v. Salazar
Briefs & Pleadings
Docket No. 09-1433

Subjects: not yet available

*Issues: When reviewing a petitioner's due process claim that undue political pressure has actually affected or influenced a federal administrative adjudicative decision, must a federal court also consider the petitioner's claim that due process was violated by the appearance of bias or impropriety arising from the political pressure?

History: Petition was filed on 5/24/10. Petition was denied on 10/4/10.

*Holding below: Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132. In order to show undue political influence affecting a decision of a federal administrative agency, "there must be some showing that the political pressure was intended to and did cause the agency's action to be influenced by factors not relevant under the controlling statute." The arguments made by the petitioner, Schaghticoke Tribal Nation, that statements and actions by Connecticut politicians as well as members of Congress expressing criticism concerning the interim decision by the Interior Department favoring acknowledgment of tribal existence improperly influenced the agency's final decision not to recognize the tribe, were disputed by testimony from Interior Department officials who stated that they were not influenced by the political clamor. Moreover, whatever political pressure may have been exerted on the department was exerted on senior agency officials and not the official ultimately responsible for the decision. Accordingly, the dismissal by the trial court of the petitioner's challenge to the decision under Section 702 of the Administrative Procedure Act is affirmed.

Related News Stories: Supreme Court asked to hear Schaghticoke recognition lawsuit (Indianz.com) 06/29/10. Schaghticoke files cert on acknowledgment reversal (Indian Country Today) 5/26/10.

Hogan v. Kaltag Tribal Council
Briefs & Pleadings
Docket No. 09-960

Subjects: Native Americans--Alaska tribes--Child custody proceedings involving nonmember of tribe.

*Issues: Did the Ninth Circuit correctly hold--in conflict with the decisions of this court and other courts as well as with the express intent of Congress--that the hundreds of Indian tribes throughout the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a nonmember and then to compel the state to give full faith and credit to the decrees entered in such proceedings?

History: Petition was filed on 2/11/10. Petition was denied on 10/4/10.

*Holding below: Kaltag Tribal Council v. Jackson , 2009 WL 2736172. Binding circuit precedent requires that full faith and credit be given by the State of Alaska to an adoption judgment issued by a Native American tribal court. The district court's decision, which was affirmed in its entirety, also held that, despite the adoptive parents' membership in a completely different tribe from that of the child, a tribe's inherent sovereignty to adjudicate internal domestic custody matters depends on the tribal membership of the child, and not that of the parents.

Related News Stories: Alaska Tribal Adoption Case Will Not Go to Supreme Court (APRN) 10/4/2010. Press Release from the Native American Rights (NARF) 10/4/10. Supreme Court asks for DOJ views on Alaska ICWA case (Indianz.com) 04/26/10.

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

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