Indian Law Bulletins | U.S. Supreme Court | Current 2013-2014 Term
News Related to the Current Supreme Court Term
Supreme Court cases from the 2013-2014 term impacting Native Americans
2013-2014 Supreme Court Term: October 2013 - July 2014
Last Updated: 12/06/13
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See Cases by Status
- Cases decided
- Petitions for certiorari granted
- Petitions for certiorari pending
- Petitions for certiorari denied
Currently, no Native American law cases have been decided by the U.S. Supreme Court in the 2013-2014 term.
Petition for certiorari granted
Currently, one Native American law case has been granted review for the 2013-2014 term.
*Issues: (1) Does a federal court have jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act but takes place outside of Native American lands? (2) Does tribal sovereign immunity bar a state from suing in federal court to enjoin a tribe from violating IGRA outside of Native American lands?
History: Petition was filed on 10/23/12. Petition was granted on 6/24/13.Oral argument was on 12/2/13.
*Holding Below: Michigan v. Bay Mills Indian Community, 2012 WL 3326596. Under the Michigan Indian Land Claims Settlement Act, the defendant tribe used trust funds to purchase new "Indian lands." It then built a casino on the property. The state of Michigan sued the tribe under the Indian Gaming Regulatory Act, arguing that the casino was built in violation of the parties' tribal-state compact. Michigan's own pleadings defeat its argument that the IGRA supplies jurisdiction here, because it expressly alleges that the casino is not located on Native American land. Additionally, under U.S. Supreme Court precedent, a state may regulate tribal activities that occur outside Native American lands but it may not enforce those regulations by suing the tribe itself absent waiver or abrogation of tribal immunity. Michigan has not demonstrated that either of those exceptions exist in this case. The district court's preliminary injunction against gambling at the casino is vacated, and the case is remanded for further proceedings consistent with this opinion.
Related News Stories: Fletcher Commentary on the Michigan v. Bay Mills Argument (Turtle Talk Blog) 12/2/13. NARF And NCAI Advise Tribes To Stay Away From Supreme Court (KGOU.org) 9/27/13. Cliff Schrader: Supreme Court doesn't bode well for Bay Mills' casino bid (thetimesherald.com) 6/27/13. U.S. Supreme Court to hear Bay Mills casino case, could impact other proposed Michigan casinos (MLive) 6/24/13. Michigan asks Supreme Court to hear Bay Mills gaming lawsuit (Indianz.com) 12/3/12.
Petition for certiorari pending
Currently, 3 petitions for writs of certiorari are pending in the 2013-2014 term.
*Issues: (from the petition for certiorari) The Ninth Circuit, affirming the District Court, held
that GCSD must exhaust its tribal court remedies
and that the dispute did not fall under the exceptions
to tribal court exhaustion laid out in National
Farmers Union Insurance Companies v. Crow Tribe,
471 U.S. 845 (1985) for actions that are patently
without jurisdiction or motivated by bad faith. The
Ninth Circuit’s decision raises four questions:
1. Does Montana v. United States, 450 U.S. 544 (1981) apply on tribal land, as this Court suggested in Nevada v. Hicks, 533 U.S. 353, 358 (2001), or does this Court acquiesce in the Ninth Circuit’s contrary decision in Water Wheel Camp Recreation Area v. LaRance, 642 F.3d 802 (9th Cir. 2011)?
2. Does a non-tribal member consent to tribal jurisdiction under Montana even when that “consent” comes in the form of a contract with a tribal corporation which expressly provides that disputes will be resolved through binding arbitration, not in tribal court, and where the tribal enterprise has expressly waived its sovereign immunity to permit arbitration?
3. Are intangible contract rights of a Nevada corporation located on federal land held in trust for the Tribe and thus subject to the Tribe’s eminent domain powers because they relate to activities on tribal land?
4. Does the bad-faith exception to National Farmers exhaustion require a showing that the tribal court acted in bad faith, or is it sufficient to demonstrate that the Tribe’s governing council (Tribal Council) did so and that the Tribe’s judiciary lacked judicial independence?
History: Petition was filed on 9/05/13.
*Holding Below: (from Westlaw) Grand Canyon Skywalk Development, LLC. v. 'Sa' Nyu Wa inc. 715 F.3d 1196 The Court of Appeals, Tallman, Circuit Judge, held that:
(1) bad faith exception to the requirement to exhaust tribal court remedies did not apply;
(2) futility exception to the requirement to exhaust tribal court remedies did not apply; and
(3) tribal court did not plainly lack jurisdiction over Nevada corporation so as to excuse the exhaustion requirement.
Related News Stories: Skywalk feud sent to tribal court (AZ Central) 4/26/13
*Issues: Does the ancient Oneida reservation in New York still exist, neither disestablished nor diminished, despite (a) the federal government's actions taken in furtherance of disestablishment; (b) the U.S. Supreme Court's holding in Sherrill, N.Y. v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), that the Oneida Indian Nation of New York cannot exercise sovereignty over lands it purchases in the ancient reservation area; and (c) the Supreme Court's finding in that case that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries?
History: Petition was filed on 11/12/12.
*Holding Below: Oneida Indian Nation of New York v. Madison County, 665 F.3d 408. It remains the law of the Second Circuit that the plaintiff Oneida Indian Nation's reservation is not disestablished until such time as decisions by prior panels are overruled either by an en banc panel or by the U.S. Supreme Court. The dismissal of the defendant counties' counterclaims in this action involving taxation of property owned by the plaintiff is affirmed.
*Issues: (from the petition for certiorari) (1) Whether the Ninth Circuit properly held—in conflict with this Court’s decisions—that the federal reserved water rights doctrine authorizes the unprecedented federal takeover of Alaska’s navigable waters sanctioned by the 1999 Rule. (2) Whether the Ninth Circuit properly proceeded on the premise—which also conflicts with this Court’s decisions—that ANILCA could be interpreted to federalize navigable waters at all given Congress’s silence on the Act’s application to navigable waters.
History: Petition was filed on 11/04/13.
*Holding Below: John v. U.S,. 720 F.3d 1214. The Court of Appeals, Kleinfeld, Senior Circuit Judge, held that: (1) Secretaries appropriately used notice-and-comment rulemaking, rather than adjudication, to identify those waters that were "public lands" for the purpose of determining the scope of ANILCA's rural subsistence priority; (2) Secretaries reasonably concluded that adjacent waters were appurtenant to, and could be necessary to fulfill the primary purposes of, the federal reservations identified in the 1999 rule; (3) Secretaries did not act arbitrarily or contrary to law in refusing to extend the federal rural subsistence priority to waters upstream and downstream from federal reservations. Affirmed.
Currently, 8 petitions for writs of certiorari have been denied in the 2013-2014 term.
*Issues: (1) Do this court's precedents establish that Oklahoma (along with 45 other states and various U.S. territories with similar statutes) can impose escrow obligations on certain cigarette manufacturers based partly on sales by Indian tribes to tribal members in Indian country? (2) Does the Oklahoma Escrow Statute, as interpreted by the state courts in this case, violate federal law by imposing escrow obligations on certain cigarette manufacturers—including Indian-owned businesses operating on reservation lands—based partly on sales by Indian tribes to tribal members in Indian country?
History: Petition was filed on 8/26/13. Petition was denied on 12/2/13.
*Holding Below: State ex rel. Edmondson v. Grand River Enterprises, Six Nations, Ltd. 2013 OK CIV APP 58. The trial court's order denying appellants' claims in their entirety and entering judgment in favor of the state is affirmed. The trial court did not err by finding that packs of cigarettes manufactured by Grand River Enterprises which have an Oklahoma tax stamp affixed and are sold in-state by retailers owned, licensed or operated by an American Indian Tribe are “units sold” upon which escrow is due. The escrow fund act is rationally related to the state's legitimate interests in promoting health and insuring availability of adequate funds to address the state's future tobacco-related health care costs.
*Issues: Does the U.S. Court of Appeals for the Second Circuit's ruling that equitable considerations bar the Onondaga Nation's claim for a declaratory judgment for violations of the Trade and Intercourse Act, three federal treaties, and the U.S. Constitution contravene the fundamental right to a remedy, international legal norms, principles of federal equity, and the U.S. Supreme Court's decisions in County of Oneida v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985), and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005)?
History: Petition was filed on 4/23/13. Petition was denied on 10/15/13.
*Holding Below: Onondaga Nation v. New York, 2012 WL 5075534. Three specific factors determine when ancestral land claims are foreclosed on equitable grounds: (1) the length of time at issue between a historical injustice and the present day; (2) the disruptive nature of claims long delayed; and (3) the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to the plaintiffs' injury. Here, all three factors support dismissal. As to length of time, the district court noted that about 183 years separate the filing of this action from the most recent occurrence giving rise to the Onondaga Nation's claims. The disruptive nature of the claims is indisputable as a matter of law. It is irrelevant that the plaintiff merely seeks a declaratory judgment. Oneida Indian Nation v. County of Oneida, 617 F.3d 114 (2d Cir. 2010), held that a declaratory judgment alone—even without a contemporaneous request for an ejectment—would be disruptive. As to settled expectations, the district court took judicial notice that the contested land has been extensively populated by non-Native-Americans, such that the land is predominantly non-Native-American today, and has experienced significant material development by private persons and enterprises as well as by public entities. Under the U.S. Supreme Court's decision in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), the government and the current occupants of the land therefore have justifiable expectations of ownership. The judgment of the district court is affirmed.
Related News Stories: Onondaga Nation Press Release on Denial of Cert (Turtle Talk) 10/15/13. Commentary on the Final Dismissal of the Onondaga Nation’s Land Claims: “Tribal Disruption and Indian Claims.” (Turtle Talk) 10/15/13.
Docket No. 12-9289
*Issues: (Not yet available)
History: Petition was filed on 3/11/13.
*Holding Below: Valenzuela v. Silversmith, 699 F.3d 1199. (From Westlaw) The Court of Appeals, Matheson, Circuit Judge, held that: (1) taking less burdensome course of disposing of appeal without addressing mootness issue was warranted; (2) member was required to exhaust his tribal court remedies before filing his petition for writ of habeas corpus in federal court; (3) member had tribal court remedies that he had to exhaust; and (4) failure of member to file habeas petition in tribal court could not be excused from requirement to exhaust.
*Issues: (1) Did the state courts below err in entering a state excise tax and penalty judgment against a tribal Indian who is exempt from state taxes and who also had a state tobacco license to transport cigarettes free of state tax stamps? (2) Is a tribal Indian, whose only activity was to transport cargo in round trips to Indian reservations, exempt from state taxes under the Indian and interstate commerce clauses of the U.S. Constitution?
History: Petition was filed on 6/26/13. Petition was denied on 10/7/13.
*Holding Below: The superior court properly dismissed the cigarette wholesaler's petition to review an order requiring her to pay cigarette taxes and penalties because the wholesaler did not first pay the contested tax, as required by statute. Moreover, the wholesaler's constitutional arguments are without merit. Even though she is correct that Washington cannot tax interstate or on-reservation shipments, the wholesaler failed to show that she shipped her cigarettes to another tribal member or out-of-state. Additionally, by virtue of her voluntarily obtained Washington cigarette wholesaler license, the wholesaler has the requisite contacts with the state to qualify as a taxpayer. Next, contrary to the wholesaler's assertion, Indians who conduct business off-reservation are subject to generally applicable state law. Finally, the fines were not excessive under the Eighth Amendment.
*Issues: (1) Is a Native American tribe immune from suit alleging violations of federal antitrust law related to price-fixing? (2) Are officials of a Native American tribe who are allegedly violating federal law immune from a suit seeking prospective relief?
History: Petition was filed on 5/30/13. Petition was denied on 10/7/13.
*Holding Below: Tonasket v. Sargent, 2013 WL 792768. The defendant Native American tribes did not waive their sovereign immunity by entering into a cigarette tax contract with the state of Washington. Tribal sovereign immunity extends to tribal officials acting in their official capacities and within their scope of authority in taxing cigarette sales occurring on tribal land. The federal antitrust laws do not abrogate tribal sovereign immunity. The district court's order dismissing the plaintiffs' action for lack of subject matter jurisdiction is affirmed.
*Issues: (from the petition for certiorari) Innumerable child welfare cases are brought in
state courts each year. In those cases involving an
Indian child domiciled off-reservation, the Indian
Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-
63 allows the tribe to request the case be transferred
to tribal court. The state court must then transfer the
case unless a parent objects or "good cause" is shown
to deny the transfer. These transfer provisions apply
throughout the life of a child welfare case and often
only come into play after the child has been in foster
care for years. But even at such late stages, a court
must grapple with uncertain jurisdiction due to the
open division involving at least seventeen states on
two crucial issues:
(1) Whether ICWA prohibits a state court from considering the ’best interests of the child" when determining whether "good cause" exists to deny the transfer of an ongoing child welfare case.
(2) Whether ICWA requires a state court to treat a motion to terminate parental rights as a "new proceeding" for purposes of determining whether "good cause" exists to deny the transfer of an ongoing child welfare case
History: Petition was filed on 4/23/13. Petition was denied on 10/7/13.
*Holding Below: In re Zylena R., 284 Neb. 834."The Supreme Court, Stephan, J., held that:
(1) foster placement and termination of parental rights proceedings involving an Indian child are separate and distinct under the Indian Child Welfare Act (ICWA) and should not be conflated in determining whether a "proceeding" is at an "advanced stage" such as to warrant denial of transfer of proceeding from state court to tribal court; abrogating, In re Interest of Louis S. et al., 17 Neb.App. 867, 774 N.W.2d 416,In re Interest of Leslie S. et al., 17 Neb.App. 828, 770 N.W.2d 678;
(2) termination of parental rights proceedings were not at an "advanced stage," such as would warrant denial of transfer; and (3) state court is not permitted to consider best interests of an Indian child in deciding whether there is good cause to deny motion to transfer child custody proceeding to tribal court; overruling, In re Interest of C.W. et al., 239 Neb. 817, 479 N.W.2d 105. Reversed and remanded with directions.
Heavican, C.J., dissented, with opinion.
*Issues: Did the U.S. Court of Appeals for the Ninth Circuit err in concluding that the exclusive use required to establish aboriginal title was defeated by a failure to demonstrate an ability to expel a hypothetical invader, by other groups' use of the Native American petitioners' territory, and by the fact that the petitioners' villages were politically independent?
History: Petition was filed on 11/28/12. Petition was denied on 10/7/13.
*Holding Below: Native Village of Eyak v. Blank, 688 F.3d 619. Based on the uncontested factual findings of the district court, its conclusion that the plaintiff Native Alaskan Villages failed to establish an entitlement to aboriginal hunting and fishing rights on an area of the Outer Continental Shelf is affirmed. The plaintiffs failed to show that their occupancy and use of the area was exclusive.
*Issues: (1) Does the Indian Child Welfare Act apply to an involuntary child custody proceeding involving an Indian child, between biological parents and a third-party nonparent? (2) Does awarding conservatorship of a child to a third-party nonparent and without a finding of parental unfitness, unconstitutionally infringe upon “the interest of parents in the care, custody and control of their children”?
History: Petition was filed on 7/08/13. Petition was denied on 10/7/13.
*Holding Below: In re E.G.L. 378 S.W.3d 542. The trial court's order, after a jury trial, appointing the mother and the stepfather as joint managing conservators, with the stepfather having the exclusive right to designate the primary residence of the child, and father as possessory conservator, is affirmed. The Indian Child Welfare Act does not apply to this case because this is not a “child custody proceeding” within the meaning of the act. This proceeding does not count as a “foster care placement” because appointing the stepfather as sole managing conservator does not involve a “temporary placement in a foster home or institution or the home of a guardian or conservator.”