2015-16 Term, Supreme Court Cases
(October 2015 - July 2016)

Last Updated: 8/1/16


See Cases by Status


Cases Decided

Five cases have been decided so far in the 2015-2016 term.

Dollar General Corporation v. Mississippi Band of Choctaw Indians
Briefs and Pleadings including Oral Argument Transcript
Additional Materials at Turtle Talk
Docket No. 13-1496

*Issues: Do Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmenbers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members?

History: Petition was filed on 6/12/14. Pertition was granted on 6/15/15. Oral argument 12/7/15. The judgment is affirmed by an equally divided Court on 6/26/16.

*Holding Below: Dolgencorp, Inc. v. the Mississippi Band of Chocktaw Indians, 746 F.3d 167. This court affirms the district court's judgment that the corporation's consensual relationship with John Doe gives rise to tribal court jurisdiction over Doe's tort claims under Montana v. United States, 450 U.S. 544 (1981). In Montana, the U.S. Supreme Court recognized that a tribe may regulate the activities of nonmembers who enter into consensual relationships with the tribe or its members through commercial dealing, contracts, leases or other arrangements. It is surely within the tribe's regulatory authority to insist that a child working for a local business not be sexually assaulted by the employees of the business. The fact that the regulation takes the form of a tort duty that may be vindicated by individual tribe members in tribal court makes no difference.

Related News Stories: Supreme Court tie reinforces tribal sovereignty in Dollar General case (Vox) 6/23/16, Supreme Court enters final stretch of historic yet unusual term (Indianz) 6/20/16, Long wait hints at Supreme Court tie in closely-watched tribal jurisdiction case (Indianz) 5/23/16, Still no decision from Supreme Court in tribal jurisdiction dispute (Indianz) 5/16/16, Supreme Court still hasn't issued decision in tribal jurisdiction case (Indianz) 4/21/16, Justice Antonin Scalia dies with Indian law cases on the docket (Indianz) 2/13/16, First impressions: Dollar General and Indian Country (Indian Country Today) 12/9/15, Supreme Court ruling could jeopardize Native American judicial sovereignty (UPI) 12/8/15, Justices weigh power of Indian tribal courts in civil suits (The NY Times) 12/7/15, Ned Blackhawk NYTs op-ed on Dollar General (Turtle Talk) 11/25/15, Tribes urged to bring states on board for Supreme Court case (Indianz) 10/20/15, Supreme Court asks DOJ for views in Mississippi Choctaw case (Indianz) 10/7/14, Dollar General and the racist foundation of the Supreme Court's tribal jurisdiction cases. (Turtle Talk) 9/8/15, Supreme Court agrees to hear first tribal jurisdiction case in years (Indianz) 6/15/15, SCOTUS to hear case on tribal court jurisdiction. (Courthouse News Service) 6/15/15, Supreme Court needs more time to review tribal jurisdiction case (Indianz) 6/8/2015.

U.S. v. Bryant
Briefs, Pleadings and Oral Argument
Docket No. 15-420

Issues: (From Petition) Section 117(a) of Title 18, United States Code, makes it a federal crime for any person to “commit[] a domestic assault within the special maritime and territorial jurisdiction of the United States or Indian country” if the person “has a final conviction on at least 2 separate prior occasions in Federal, State, or Indian tribal court proceedings for” enumerated domestic-violence offenses. 18 U.S.C. 117(a). The question presented is whether reliance on valid uncounseled tribal-court misdemeanor convictions to prove Section 117(a)'s predicate-offense element violates the Constitution.

History: Petition was filed on 10/05/15. Petition was granted on 12/14/15. Oral argument on 4/19/16. Decided 6/13/16.

Holding from the Syllabus: Because Bryant’s tribal-court convictions occurred in proceedings that complied with ICRA and were therefore valid when entered, use of those convictions as predicate offenses in a §117(a) prosecution does not violate the Constitution. Nichols instructs that convictions valid when entered retain that status when invoked in a subsequent proceeding. Nichols reasoned that “[e]nhancement statutes . . . do not change the penalty imposedfor the earlier conviction”; rather, repeat-offender laws “penaliz[e] only the last offense committed by the defendant.” 511 U. S., at 747. Bryant’s sentence for violating §117(a) punishes his most recent actsof domestic assault, not his prior crimes prosecuted in tribal court. He was denied no right to counsel in tribal court, and his Sixth Amendment right was honored in federal court. Bryant acknowledges that Nichols would have allowed reliance on uncounseled tribalcourt convictions resulting in fines to satisfy §117(a)’s prior-crimes predicate. But there is no cause to distinguish for §117(a) purposesbetween fine-only tribal-court convictions and valid but uncounseled tribal-court convictions resulting in imprisonment for a term not exceeding one year. Neither violates the Sixth Amendment. Bryant is not aided by Burgett. A defendant convicted in tribal court suffered no Sixth Amendment violation in the first instance, so he cannot “suffe[r] anew” from a prior deprivation in his federal prosecution.
Bryant also invokes the Due Process Clause of the Fifth Amendment to support his assertion that tribal-court judgments should notbe used as predicate offenses under §117(a). ICRA, however, guarantees “due process of law,” accords other procedural safeguards, andpermits a prisoner to challenge the fundamental fairness of tribalcourt proceedings in federal habeas corpus proceedings. Because proceedings in compliance with ICRA sufficiently ensure the reliabilityof tribal-court convictions, the use of those convictions in a federal prosecution does not violate a defendant’s due process right. Pp. 12– 16. 769 F. 3d 671, reversed and remanded. GINSBURG, J., delivered the opinion for a unanimous Court. THOMAS, J., filed a concurring opinion.

Related News Stories: High court denies rights of Natives (Albuquerque Journal) 6/26/16, Supreme Court enters final stretch of historic yet unusual term (Indianz) 6/20/16, 6th Am. can't stop federal courts from using tribal convictions (Find Law) 6/15/16, Supreme Court upholds tribal court ruling in domestic violence case (Think Progress) 6/15/16, Supreme Court decision hailed as a victory for tribal sovereignty (Indianz) 6/14/16, Supreme Court upholds use of tribal convictions in federal system (Indianz) 6/13/16, Supreme Court debates 'inherent' tribal sovereignty in new ruling (Indianz) 6/9/16, Justice Antonin Scalia dies with Indian law cases on the docket (Indianz) 2/13/16, Supreme Court agrees to review yet another Indian law dispute (Indianz) 12/14/15

Related Law Review article:: United States v. Bryant and the subsequent use of uncounseled tribal court convictions in state or federal prosecution, Author: LeTang, Nicholas, Source: 77 Mont. L. Rev. 211 (Winter 2016)

Sturgeon v. Frost
Briefs, Pleadings and Oral Argument Transcript
Docket No. 14-1209

*Issues: Does Section 103(c) of the 1980 Alaska National Interest Lands Conservation Act prohibit the National Park Service from exercising regulatory control over state, native corporation and private Alaska land physically located within the boundaries of the National Park System?

History: Petition was filed on 3/31/15. Petition was granted 10/1/15. Case was decided on 3/22/16.

Holdings: The Ninth Circuit’s interpretation of Section 103(c) is inconsistent with both the text and context of ANILCA. Pp. 12–16. (a) The Ninth Circuit’s interpretation of Section 103(c) violates “afundamental canon of statutory construction that the words of astatute must be read in their context and with a view to their place in the overall statutory scheme,” Roberts v. Sea-Land Services, Inc., 566 U. S. ___, ___. ANILCA repeatedly recognizes that Alaska is differ ent, and ANILCA itself accordingly carves out numerous Alaska-specific exceptions to the Park Service’s general authority over federally managed preservation areas. Those Alaska-specific provisions reflect the simple truth that Alaska is often the exception, not therule. Yet the reading below would prevent the Park Service from recognizing Alaska’s unique conditions. Under that reading, the ParkService could regulate “non-public” lands in Alaska only through rules applicable outside Alaska as well. The Court concludes that, whatever the reach of the Park Service’s authority under ANILCA,Section 103(c) did not adopt such a “topsy-turvy” approach. Pp. 12–
14. (b) Moreover, it is clear that Section 103(c) draws a distinction between “public” and “non-public” lands within the boundaries of conservation system units in Alaska. And yet, according to the court below, if the Park Service wanted to differentiate between that “public” and “non-public” land in an Alaska-specific way, it would have toregulate the “non-public” land pursuant to rules applicable outsideAlaska, and the “public” land pursuant to Alaska-specific provisions.Assuming the Park Service has authority over “non-public” land inAlaska (an issue the Court does not decide), the Court concludes thatthis is an implausible reading of the statute. The Court therefore rejects the interpretation of Section 103(c) adopted by the court below. Pp. 14–15. (c) The Court does not reach the remainder of the parties’ arguments. In particular, it does not decide whether the Nation Riverqualifies as “public land” for purposes of ANILCA. It also does not decide whether the Park Service has authority under Section 100751(b) to regulate Sturgeon’s activities on the Nation River, even if the river is not “public” land, or whether—as Sturgeon argues—any such authority is limited by ANILCA. Finally, the Court does not consider whether the Park Service has authority under ANILCA overboth “public” and “non-public” lands within the boundaries of conservation system units in Alaska, to the extent a regulation is written toapply specifically to both types of land. The Court leaves those arguments to the lower courts for consideration as necessary. Pp. 15–
16. 768 F. 3d 1066, vacated and remanded.
ROBERTS, C. J., delivered the opinion for a unanimous Court.

Related News Stories: Alaska moose hunter John Sturgeon wins round in court over hovercraft use (AP) 3/22/16. Fight over Alaska hunter’s hovercraft heads to high court (Seattle Times) 1/2/16.

Nebraska v. Parker
Briefs and Pleadings
Docket No. 14-1406

*Issues: (1) Does ambiguous evidence concerning the first two Solem v. Bartlett, 465 U.S. 463 (1984), factors necessarily foreclose any possibility that diminishment could be found on a de facto basis?
(2) Were the original boundaries of the Omaha Indian Reservation diminished following passage of the surplus land act of 1882?

History: Petition was filed on 5/27/15. Petition was granted 10/1/15. Case was decided on 3/22/16.

Holdings: The 1882 Act did not diminish the Omaha Indian Reservation. Pp. 5–12. (a) Only Congress may diminish the boundaries of an Indian reservation, and its intent to do so must be clear. Solem v. Bartlett, 465 U. S. 463, 470. This Court’s framework for determining whether anIndian reservation has been diminished is well settled and starts with the statutory text. Hagen v. Utah, 510 U. S. 399, 411. Here, the 1882 Act bears none of the common textual indications that expresssuch clear intent, e.g., “[e]xplicit reference to cession or other language evidencing the present and total surrender of all tribal interests” or “an unconditional commitment from Congress to compensatethe Indian tribe for its opened land,” Solem, supra, at 470. The Act’s language opening the land “for settlement under such rules and regulations as [the Secretary] may prescribe,” 22 Stat. 341, falls into acategory of surplus land acts that “merely opened reservation land tosettlement,” DeCoteau v. District County Court for Tenth Judicial Dist., 420 U. S. 425, 448. A comparison of the text of the 1854 and1865 treaties, which unequivocally terminated the Tribe’s jurisdiction over its land, with the 1882 Act confirms this conclusion. Pp. 5–8. (b) In diminishment cases, this Court has also examined “all thecircumstances surrounding the opening of a reservation,” Hagen, supra, at 412, including the contemporaneous understanding of the Act’s effect on the reservation. Here, such historical evidence cannot overcome the text of the 1882 Act, which lacks any indication thatCongress intended to diminish the reservation. Dueling remarks bylegislators about the 1882 Act are far from the unequivocal evidence required in diminishment cases. Pp. 8–10. (c) Finally, and to a lesser extent, the Court may look to subsequent demographic history and subsequent treatment of the land bygovernment officials. See Solem, supra, at 471–472. This Court has never relied solely on this third consideration to find diminishment,and the mixed record of subsequent treatment of the disputed land inthis case cannot overcome the statutory text. Petitioners point to theTribe’s absence from the disputed territory for more than 120 years, but this subsequent demographic history is the “least compelling” evidence in the diminishment analysis. South Dakota v. Yankton Sioux Tribe, 522 U. S. 329, 356. Likewise, evidence of the subsequenttreatment of the disputed land by government officials has similarlylimited value. And, while compelling, the justifiable expectations ofthe non-Indians living on the land cannot alone diminish reservation boundaries. Pp. 10–12. (d) Because the parties have raised only the single question of diminishment, the Court expresses no view about whether equitableconsiderations of laches and acquiescence may curtail the Tribe’s power to tax the retailers of Pender. Cf. City of Sherrill v. Oneida Indian Nation of N. Y., 544 U. S. 197, 217–221. P. 12. 774 F. 3d 1166, affirmed. THOMAS, J., delivered the opinion for a unanimous Court.

Related News Stories: Supreme Court enters final stretch of historic yet unusual term (Indianz) 6/20/16, SCOTUS sides with tribe in Nebraska liquor tax dispute (Courthouse News Service) 3/22/16, Supreme Court backs Omaha Tribe in reservation boundary case. (Indianz) 3/22/16, Justice Antonin Scalia dies with Indian law cases on the docket (Indianz) 2/13/16

Related Law Review Article:
Title: Judging "Indian character"? The Supreme Court's opportunity in Nebraska v. Parker
Author: Birkhold, Matthew H.
Source: 2016 Wis. L. Rev. Forward 21 (February 2016)

Menominee Indian Tribe of Wisconsin v. U.S.
Briefs and Pleadings
Docket No. 14-510

History: Petition was filed on 11/03/14. Granted review on 6/30/15. Case was decided on 1/25/16.

*Holdings: Equitable tolling does not apply to the presentment of petitioner’sclaims. (a) To be entitled to equitable tolling of a statute of limitations, a litigant must establish “ (1) that he has been pursuing his rights diligently, and (2) that some extraordinary circumstance stood in his way and prevented timely filing.” Holland v. Florida, 560 U. S. 631, 649. The Tribe argues that diligence and extraordinary circumstances should be considered together as factors in a unitary test, and it faults the Court of Appeals for declining to consider the Tribe’s diligence in connection with its finding that no extraordinary circumstances existed. But this Court has expressly characterized these two components as “elements,” not merely factors of indeterminate or commensurable weight, Pace v. DiGuglielmo, 544 U. S. 408, 418, and has treated them as such in practice, see Lawrence v. Florida, 549 U. S. 327, 336–337. The Tribe also objects to the Court of Appeals’interpretation of the “extraordinary circumstances” prong as requiring the showing of an “external obstacle” to timely filing. This Court reaffirms that this prong is met only where the circumstances that caused a litigant’s delay are both extraordinary and beyond its control. Pp. 5–7. (b) None of the Tribe’s excuses satisfy the “extraordinary circumstances” prong of the test. The Tribe had unilateral authority to present its claims in a timely manner. Its claimed obstacles, namely, a mistaken reliance on a putative class action and a belief that presentment was futile, were not outside the Tribe’s control. And the significant risk and expense associated with presenting and litigatingits claims are far from extraordinary. Finally, the special relationship between the United States and Indian tribes, as articulated inthe ISDA, does not override clear statutory language. Pp. 7–8. 764 F. 3d 51, affirmed. ALITO, J., delivered the opinion for a unanimous Court. Case below: Menominee Indian Tribe of Wisconsin v. U.S. 765 F.3d 1010.

Related News Stories: Justice Antonin Scalia dies with Indian law cases on the docket (Indianz) 2/13/16, Supreme Court rules equitable tolling does not apply to tribe's contract claim (Jurist) 1/25/16. Supreme Court rules against Menominee Tribe, denies cert on NAGPRA claim (Indian Country Today) 1/26/16.


Petition for certiorari granted

No cases granted review are pending for the 2015-2016 term.

Back to Top


Petition for certiorari pending

6 petitions for writ of certiorari are pending in the 2015-2016 term.

Jones v. Norton
Briefs and Pleadings
Docket No. 16-72

Questions Presented: 1) Where it is undisputed that Plaintiffs/Petitioners Debra Jones and Arden Jones, and their deceased son Todd R. Murray, all had individual rights under the 1868 Ute Tribe treaty with the United States, and where, under the procedural posture of this case, it is undisputed that Plaintiffs’ and their Decedent son’s individual rights under the Treaty were violated, did Plaintiffs state a claim for relief under 42 U.S.C. § 1983 based on the violation of their treaty rights? 2) Where State police officers have pursued an Indian within Indian country without either probable cause or jurisdictional authority can they be relieved of the common law duty to preserve evidence simply because the officers’ tortious conduct giving rise to the claims against them arose within Indian country? 3) Where there are disputed material facts, can a district court grant summary judgment based upon the court’s opinion that a reasonable jury would decide the case in favor of the summary judgment movant?

History: Petition was filed on 7/13/2016.

Ruling Below: Jones v. Norton, U.S. Court of Appeals, Tenth Circuit. 809 F.3d 564. The Court of Appeals, Briscoe, Circuit Judge, held that: [1] suspect was not seized due to officers’ actions during encounter; [2] police officers did not use excessive force that shocked conscience, precluding excessive force claim; [3] treaties did not give parents private right of action enforceable through section 1983; [4] officers did not conspire to obstruct justice or violate son’s civil rights; [5] mortuary apprentice did not intentionally inflict emotional distress (IIED) upon parents by making incision to draw blood from son’s body; and [6] District Court did not abuse its discretion by denying request for sanction for alleged spoliation of numerous forms of evidence. So ordered.

Kelsey v. Bailey
Briefs and Pleadings
Docket No. 16-5120

Questions Presented: In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), and Dura v. Reina, 495 U.S. 676 (1990), the Court held that Indian tribes' power to prosecute for offenses committed within the tribe's territory extends only to members of the tribe. In so doing, the Court reaffirmed its earliest tribal-law rule, that "the limitation upon [a tribe's] sovereignty amounts to the right of governing every person within their limits except themselves." Fletcher v. Peck, IO U.S. 87, 147 ( 1810). In this case, Petitioner Norbert Kelsey was prosecuted by the Little River Band of Ottawa Indians (the Band), of which he is a member, for acts taking place outside the tribe's territorythat is, outside the Band's "limits." Id. The first question presented is: 1) Whether Indian tribes may prosecute their members for acts that occur outside the tribe's territory absent Congressional authorization. In addition, Petitioner Kelsey's conduct was, at the time of its alleged commission, plainly outside the Band's prosecutorial reach as defined by its own criminal jurisdiction statutes. To uphold the prosecution, the Tribal Court of Appeals rewrote the Band's law by jettisoning an unambiguous statutory limitation on its power and asserting jurisdiction over extraterritorial conduct not previously reached by its laws. Therefore, the second question presented is: (2) Whether the Band's retroactive expansion of a narrow and precise jurisdictional statute to encompass an extraterritorial act previously outside its plain terms violates the due process protections of the Indian Civil Rights Act, 25 U.S.C. § 1302(a), and Bouie v. City of Columbia, 378 U.S. 347 (1964).

History: Petition was filed on 7/7/2016.

Ruling Below: Kelsey v. Pope, U.S. Court of Appeals, Sixth Circuit. 809 F.3d 849. The Court of Appeals, McKeague, Circuit Judge, held that:
1) tribe had inherent authority to prosecute tribal member for offense substantially affecting tribal self-governance interests, even when such offenses took place outside of Indian country;
2) Indian Civil Rights Act (ICRA) extended due process protections to member;
3) federal constitutional standards applied; and
4) decision of tribal Court of Appeals to recognize jurisdiction over conduct of member of Indian tribe in touching victim's breasts through her clothing at tribe's off-reservation community center did not violate due process as extended through ICRA.
Reversed and vacated.

Flute v. U.S.
Briefs and Pleadings
Docket No. 15-1534

Questions Presented: Whether a treaty promise to pay reparations to a group of Native Americans in the form and amount that is "best adapted to the respected wants and conditions of' said group of Native Americans, and subsequent appropriation of funds by Congress to pay such reparations, create a fiduciary relationship between the United States and said group of Native Americans. Whether the Administrative Procedures Act waives the United States' immunity from suit for accounting claims regarding trust mismanagement that begun before the enactment of the Act. Whether a set of Appropriations Acts by Congress that defer the accrual of trust mismanagement claims against the United States operates as a waiver of the United States' immunity from suit.

History: Petition was filed on 6/20/2016.

Ruling Below: Flute v. U.S., U.S. Court of Appeals, Tenth Circuit. 808 F.3d 1234. The Court of Appeals, McHugh, Circuit Judge, held that: 1 Department of Interior (DOI) Appropriations Act of 2009 that tolled running of applicable statute of limitations for claims “concerning losses to or mismanagement of trust funds” did not relieve descendents of independent obligation to identify unequivocal waiver of immunity or express consent to be sued; 2 Treaty of Little Arkansas and 1866 Appropriations Act did not create ongoing fiduciary obligations to descendents; and 3 descendents were not entitled to accounting. Affirmed. Phillips, Circuit Judge, filed concurring opinion.

Tunica-Biloxi Gaming Authority v. Zaunbrecher
Briefs and Pleadings
Docket No. 15-1486

Question Presented: Whether tribal sovereign immunity extends to individual tribal employees to bar suit against them in state district court for alleged negligent service of alcohol to a lawful purchaser at a tribal-owned casino on tribal trust land.

History: Petition was filed on 5/26/2016.

Ruling Below: Zaunbrecher v. Succession of David, Court of Appeal of Louisiana, Third Circuit. 181 So.3d 885. The Court of Appeal, Ezell, J., held that the doctrine of sovereign immunity did not bar motorist's son's cause of action against three casino employees in their individual capacities. Affirmed in part, reversed in part, and remanded.

Lewis v. Clarke
Briefs and Pleadings
Docket No. 15-1500

Question Presented: Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.

History: Petition was filed on 6/13/2016.

Ruling Below: Lewis v. Clarke, Supreme Court of Connecticut 320 Conn. 706. The Supreme Court, Eveleigh, J., held that tribal sovereign immunity extended to claims.

Pro-Football, Inc. v. Blackhorse, et al.
Briefs and Pleadings
Docket No. 15-1311

Questions Presented: The “disparagement clause” in § 2(a) of the Lanham Act bars the registration of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1052(a). The questions presented are: 1. Whether § 2(a)’s disparagement clause violates the First Amendment. 2. Whether § 2(a)’s disparagement clause is impermissibly vague, in violation of the First and Fifth Amendments. 3. Whether the government’s decades-long delay between registering a trademark and cancelling the registration under § 2(a)’s disparagement clause violates due process.

History: Petition was filed on 4/25/2016.

Ruling Below: Pro Football, Inc. v. Blackhorse, U.S. Dist. Ct, E.D. Virginia 112 F.Supp.3d 439. The District Court, Gerald Bruce Lee, J., held that: 1) cancellation of trademark registrations did not violate team's free speech rights; 2) federal trademark registration program is government speech that is exempt from First Amendment scrutiny; 3) Lanham Act's “may disparage” provision was not facially void for vagueness under due process principles; 4) Lanham Act's “may disparage” provision, as applied, was not void for vagueness; 5) trademark registrations were not property interests protected by due process or Takings Clause; 6) evidence established that registered “REDSKINS” marks may disparage Native Americans; and 7) unreasonably delay, as required for team's laches defense, was not shown. Summary judgment for Native Americans; TTAB's ruling affirmed.


Petition for certiorari denied

21 petitions for writs of certiorari have been denied in the 2015-2016 term.

Jensen v. EXC, Inc.
Briefs and Pleadings
Docket No. 15-64

*Issues: (1) Are federal courts free to ignore congressionally confirmed Indian treaty rights that impliedly reserve tribal jurisdiction over nonmember conduct within an Indian reservation, thereby effecting an impermissible judicial abrogation of those treaty rights? (2) May federal courts disregard the Supreme Court's multifactor analysis for determining the status of a roadway existing on tribal trust land when deciding if an Indian tribe has inherent sovereign jurisdiction to adjudicate a collision occurring on that roadway between a tribally regulated tour bus and a passenger vehicle carrying tribal members? (3) May federal courts decline to apply the consensual relationship exception of Montana v. United States, 450 U.S. 544 (1981) because nonmember conduct occurred on land deemed to be the equivalent of non-Indian fee land, where (1) the Supreme Court has indicated that Montanas consensual relationship exception can justify tribal jurisdiction over nonmember conduct occurring on non-Indian fee land or its equivalent, and (b) there exists a consensual relationship of the qualifying kind between the tribe and the nonmembers? (4) May federal courts deny that an Indian tribe has inherent civil jurisdiction, pursuant to the second Montana exception, over nonmembers commercial touring of tribal lands that results in a fatal tour bus/auto collision where (a) the nonmembers conduct implicates the tribe's interest in governing itself, controlling internal relations and superintending land use, and (b) the impact of the commercial touring activity, unconstrained by tribal regulatory authority, is demonstrably serious and imperils the tribe's sovereign interests?

History: Petition was filed on 7/13/15. Petition was denied on 6/28/16.

*Holding Below: EXC Inc. v. Jensen, 9th. Cir. 588 Fed. Appx. 720 The district court's holding that the Navajo Nation tribal courts may not exercise adjudicatory jurisdiction over a highway accident that occurred on a stretch of U.S. Highway 160 within the exterior boundaries of the Navajo Reservation is affirmed. The petitioners concede that the Navajo Nation has not retained the right to exclude nonmembers on U.S. Highway 160. Consequently, the highway is the equivalent of non-Indian fee land for jurisdictional purposes, and tribal jurisdiction is only appropriate if one of the exceptions in Montana v. United States, 450 U.S. 544 (1981) applies. The first Montana exception covering the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements doesn't apply here because the unsigned permit agreement even if binding on the defendant didn't provide sufficient notice that the defendant would be subject to tribal court jurisdiction on U.S. Highway 160 to be a basis for imputing consent. The second Montana exception allowing tribes to exercise jurisdiction over nonmember conduct when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe also doesn't apply because a tort suit arising out of a state highway accident doesn't fit that bill.

Related News Stories: Supreme Court puts an end to another tribal jurisdiction dispute (Indianz) 6/28/16

Pauma Band of Mission Indians v. California
Briefs and Pleadings
Docket No. 15-1291

Questions Presented: Whether an Indian tribe can pursue a bad faith negotiation claim against a state under Section 2710(d)(7)(A)(i) of the Indian Gaming Regulatory Act after rescinding a compact induced by misrepresentation or other latent bad faith conduct, and thus bringing its circumstances into compliance with the statutory requirement that "a Tribal-State compact has not been entered into."

History: Petition was filed on 4/18/2016. Petition was denied on 6/27/16.

Ruling Below: Pauma Band of Luiseno Mission Indians of Pauma & Yuima Reservation v. California, U.S. Court of Appeals, 9th Cir. 813 F.3d 1155. The Court of Appeals, Tallman, Circuit Judge, held that: 1) State misrepresented to tribe that no further licenses were available; 2) amendment was voidable and appropriate remedy was rescission and restitution; 3) State was not entitled to setoff for profits tribe gained from operating machines it would not have had absent amendment; 4) State's misrepresentation was innocent not fraudulent; 5) State waived sovereign immunity; and 6) language of IGRA precluded bad faith claim against State. Affirmed.

Related News Stories: Supreme Court won't hear Pauma Band compact negotiation case (Indianz) 6/27/16

Shinnecock Indian Nation v. New York
Briefs and Pleadings
Docket No. 15-1215

Questions Presented: 1. Whether at the outset of litigation a court may apply “laches” to foreclose an Indian tribe from bringing its federal statutory and common-law claims including one for money damages, if brought within the statute of limitations established by Congress. 2. Whether a court violates the Fifth Amendment’s Due Process and Takings Clauses when it retroactively applies a new, judicially-formulated rule to dismiss an Indian tribe’s viable claims ab initio, thereby extinguishing established property rights.

History: Petition was filed on 3/25/2016. Petition was denied on 6/27/16.

Ruling Below: Shinnecock Indian Nation v. New York,, 2nd Cir. 628 Fed.Appx. 54

Related News Stories: Shinnecock Nation hits the end of the line with ancestral land claim (Indianz) 6/27/16, Shinnecock Nation wants Supreme Court to review land claim (Newsday) 4/3/16.

California v. Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation
Briefs and Pleadings
Docket No. 15-1185

Questions Presented: Whether, under Edelman, the language of the limited waiver—which expressly excludes claims for “monetary damages” and references only injunctive relief, specific performance, and declaratory relief— waived the State’s sovereign immunity with respect to the district court’s monetary award.

History: Petition was filed on 3/17/2016. Petition was denied on 6/27/16.

*Holding Below: Pauma Band of Luiseno Mission Indians of the Pauma & Yuima Reservation v. California, 9th. Cir. 2015 WL 9245245 The Court of Appeals, Tallman, Circuit Judge, held that: [1] State misrepresented to tribe that no further licenses were available; [2] amendment was voidable and appropriate remedy was rescission and restitution; [3] State was not entitled to setoff for profits tribe gained from operating machines it would not have had absent amendment; [4] State's misrepresentation was innocent not fraudulent; [5] State waived sovereign immunity; and [6] language of IGRA precluded bad faith claim against State. Affirmed.

Related News Stories: Supreme Court won't hear Pauma Band compact negotiation case (Indianz) 6/27/16

Soaring Eagle Casino and Resort v. NLRB
Briefs and Pleadings
Docket No. 15-1034

Issues: This case presents two questions, both of which have divided the courts of appeals: (1) Does the National Labor Relations Act abrogate the inherent sovereignty of Indian tribes and thus apply to tribal operations on Indian lands? (2) Does the National Labor Relations Act abrogate the treaty-protected rights of Indian tribes to make their own laws and establish the rules under which they permit outsiders to enter Indian lands?

History: Petition was filed on 2/12/2016. Petition was denied on 6/27/16.

*Holding Below: Soaring Eagle Casino and Resort v. NLRB, 6th. Cir. 791 F.3d 648 The Court of Appeals, Kathleen M. O'Malley, Circuit Judge, held that: 1 neither 1855 and 1864 treaties nor federal Indian law and policies prevented application of the NLRA to tribal-owned casino operated on trust land within a reservation, and 2 casino fell within scope of the NLRA, and NLRB had jurisdiction to regulate casino's employment practices. Petition denied and cross-application granted. White, Circuit Judge, filed opinion concurring in part and dissenting in part.

Related News Stories: Supreme Court deals setback to tribes in labor sovereignty dispute (Indianz) 6/27/16

Little River Band of Ottawa Indians Tribal Government v. NLRB
Briefs and Pleadings
Docket No. 15-1044

Issues: Whether the National Labor Relations Board exceeded its authority by ordering an Indian tribe not to enforce a tribal labor law that governs the organizing and collective bargaining activities of tribal government employees working on tribal trust lands.

History: Petition was filed on 2/12/16. Petition was denied on 6/27/16.

*Holding Below: National Labor Relations Board v. Little River Band of Ottawa Indians Tribal Government, 9th. Cir. 788 F.3d 537 The Court of Appeals, Julia Smith Gibbons, Circuit Judge, held that: (1) Board's determination that NLRA's definition of "employers" extended to Indian tribes was not entitled to Chevron deference, and (2) NLRA applied to tribe's operation of casino. Application granted. Briefs and other Materials from Turtle Talk

Related News Stories: Supreme Court deals setback to tribes in labor sovereignty dispute (Indianz) 6/27/16, NLRB defends attempt to enroach on tribal sovereignty (National Law Review) 5/28/16

Seminole Tribe v. Stranburg
Briefs and Pleadings
Docket No. 15-1064

Issues: When a utility provider exercises a state-law right to expressly pass on a utility tax to a federally recognized Indian tribe for utility services delivered to the tribe’s reservations and the tribe is therefore legally obligated to pay the tax, is the tax an impermissible direct tax on the tribe?

History: Petition was filed on 2/19/2016. Petition was denied on 6/13/16.

*Holding Below: Seminole Tribe of Florida v. Stranburg, 11th. Cir. 799 F.3d 1324 The Court of Appeals, N.R. Smith, Circuit Judge, held that: 1)The Court of Appeals, Rosenbaum, Circuit Judge, held that: 1 Indian Reorganization Act precluded state's imposition of rental tax on reservation land; 2) federal regulatory scheme preempted state's imposition of rental tax; 3) it lacked jurisdiction over argument that district court should have abstained, on comity grounds, from reaching merits; 4) district court did not abuse its discretion in declining to dismiss, on comity grounds, claim that tribe was exempt from state's imposition of rental tax; 5) legal incidence of state's tax on gross receipts from utility services fell on utility company; and 6) utility tax was not preempted. Affirmed in part and reversed in part.

Related News Stories: U.S. Supreme Court rejects Seminole tribe's appeal in tax fight (Jacksonsville Daily Record) 6/14/16, Seminole Tribe won't get to argue taxation case at Supreme Court (Indianz) 6/13/16, Seminole Tribe asks Supreme Court to hear tax case (Indianz) 4/8/16

La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. DOI
Briefs and Pleadings
Docket 15-826

Issues: (From Petition) Whether there is a Religious Freedom Restoration Act violation when the Government denies Native Americans access to land necessary for religious rites by the threat of civil or criminal trespass prosecution.

History: Petition was filed on 10/26/15. Petition was denied on 6/6/16.

Holdings Below: La Cuna De Aztlan Sacred Sites Protection Circle Advisory Committee v. DOI. Ninth Circuit. 603 Fed.Appx. 651(2015).

Related News Stories: Supreme Court won't take up dispute over solar plant on sacred land (Indianz) 6/6/16

Citizens Against Casino Gambling in Erie County v. Chaudhuri
Briefs and Pleadings
Docket No. 15-780

Issues: (From Petition) 1. Whether Congress, by enacting legislation permitting an Indian tribe to purchase land on the open market and to hold it in “restricted fee,” created “Indian country,” thereby completely divesting a state of its territorial sovereignty over that land, despite the absence of any explicit statutory language reflecting congressional intent to transfer sovereignty to the tribe? 2. Whether the Indian Commerce Clause (U.S. Const., art. I, § 8) gives Congress authority to completely divest a state of the sovereignty it had previously exercised over land for more than two centuries and transfer that sovereignty to an Indian tribe by enacting legislation permitting an Indian tribe to buy such land on the open market and to hold it in “restricted fee.” 3. Whether the mere congressional designation of “restricted fee” status on tribally owned land pursuant to the Indian Nonintercourse Act (25 U.S.C. § 177) implies an intent to transfer governmental power over that land to the tribe?

History: Petition was filed on 12/03/15. Petition was denied on 5/31/16.

Holdings Below: Citizens Against Casino Gambling in Erie County v. Chaudhuri 2nd Cir. 802 F3d. 267 (2015), (From Westlaw) The Court of Appeals, Droney, Circuit Judge, held that: (1) Seneca Nation had jurisdiction over parcel; (2) parcel constituted "Indian lands" within meaning of Indian Gaming Regulatory Act (IGRA); and (3) parcel did not fall within scope of IGRA's gaming prohibition.

Related News Stories: Supreme Court won't hear long-running Seneca Nation casino case (Indianz) 5/31/16, Supreme Court delays action on Seneca Nation gaming land case (Indianz) 5/16/16

Knight v. Thompson
Briefs and Pleadings
Docket 15-999

Issues: (From Petition) Whether Alabama’s grooming policy violates RLUIPA, 42 U.S.C. § 2000cc, et seq., to the extent that it prohibits Petitioners from wearing unshorn hair in accordance with their sincerely held religious beliefs.

History: Petition was filed on 2/02/16. Petition was denied on 5/2/16.

Holdings Below: Knight v. Thompson. 797 F.3d 934 (2015). Ninth Circuit. 603 Fed.Appx. 651(2015). On remand, the Court of Appeals, Harvey E. Schlesinger, District Judge, sitting by designation, held that: (1) challenged policy furthered compelling interests, and (2) challenged policy was least restrictive means of further those compelling interests.

Related News Stories: Supreme Court will not hear case about Native American prisoners (Activist Post) 5/9/16

Crow Allottees v. U.S.
Briefs and Pleadings
Docket 15-779

Issues: (From Petition) Can the water rights owned by individual Crow Indian allottees - which this Court in United States v. Powers, 305 U.S. 527 (1939) recognized as distinct individual rights, separate from water rights possessed by the Crow Tribe - be awarded to the Crow Tribe in negotiations between the United States, the tribe, and the State of Montana? Further, do the Montana Courts have jurisdiction to decide these questions of federal law related to allottees' rights?

History: Petition was filed on 12/14/15. Petition was denied on 4/25/16.

Holdings Below: In re the Crow Water Compact Supreme Court of Montana. 380 Mont. 168 (2015), (From Westlaw) The Supreme Court, Mike McGrath, C.J., held that: (1) Water Court was not required to apply rule allowing dismissal of action for failure to state a claim for which relief could be granted; (2) Water Court's review was limited to determining whether Compact was the product of fraud, collusion, or overreaching; (3) Water Court acted within its discretionary power by denying motion by allottees to stay proceedings; and (4) Water Court was not required to defer action on the basis of absence of list of current uses of the tribal water right.

Related News Stories: Supreme Court won't hear Indian blood quantum and race case (Indianz) 4/25/16

Zepeda v. U.S.
Briefs and Pleadings
Docket No. 15-675

Issues: (From Petition) The Indian Major Crimes Act, 18 U.S.C. § 1153, makes it a federal crime for an "Indian" to commit any one of thirteen enumerated acts in "Indian country." In this case, the en banc Ninth Circuit held that an element of the offense in prosecutions under this statute is proof that the defendant has "Indian blood," whether or not that blood tie is to a federally recognized tribe. The question presented is: Whether, as construed by the Ninth Circuit, Section 1153 impermissibly discriminates on the basis of race.

History: Petition was filed on 11/19/15. Petition was denied on 4/25/16.

Holdings Below: U.S. v. Zepeda, 9th Cir. 792 F.3d 1103 (2015), (From Westlaw) On rehearing en banc, the Court of Appeals, William A. Fletcher, Circuit Judge, held that: 1) under the Indian Major Crimes Act (IMCA), government has to prove that the defendant has some quantum of Indian blood, whether or not traceable to a federally recognized tribe, overruling United States v. Maggi, 598 F.3d 1073; 2) a defendant must have been an Indian at the time of the charged conduct under the IMCA; 3) a tribe's federally recognized status is a question of law to be determined by the trial judge; 4) evidence at trial was sufficient to support the finding that defendant was an Indian within the meaning of the IMCA at the time of his crimes; and 5) defendant's prison term of 90 years and three months was reasonable. Affirmed.

Related News Stories: Supreme Court won't hear Indian blood quantum and race case (Indianz) 4/25/16

Alaska v. Organized Village of Kake, Alaska, et al.
Briefs and Pleadings
Docket No. 15-467

Issues: (From Petition) The question presented is: whether the Ninth Circuit’s decision contravenes the basic administrative law principle, established by this Court’s decisions, that an executive agency may change the policies of a previous administration based on the new administration’s different values and priorities, even though the relevant facts are unchanged.

History: Petition was filed on 10/12/15. Petition was denied on 3/28/16.

Holding Below: Organized Village of Kake v. U.S. Dept. of Agriculture, 9th Cir.795 F.3d 956 (2015), 9th. (From Westlaw) On rehearing en banc, the Court of Appeals, Andrew D. Hurwitz, Circuit Judge, held that: 1) Alaska demonstrated that it would suffer an injury in fact if roadless rule was implemented; 2) Department did not provide substantial justification or a reasoned explanation for its change in policy; and 3) roadless rule would remain in effect. Affirmed.

Wasatch County, Utah, et al. v. Ute Indian Tribe of the Uintah and Ouray Reservation
Briefs and Pleadings
Docket No. 15-640

Issues: (From Petition) Did the court of appeals err in defying this Court's decision in Hagen v. Utah and enjoining a proper state court prosecution of a tribal member on lands that this Court has held have been diminished by Congress?

History: Petition was filed on 11/13/15. Petition was denied on 3/21/16.

Holding Below: Ute Indian Tribe of the Uintah and Ouray Reservation v. Utah, 10th Cir. 790 F.3d 1000 (2015), (From Westlaw) The Court of Appeals, Gorsuch, Circuit Judge, held that: 1) county's prosecution of tribal member constituted irreparable injury to tribal sovereignty; 2) Anti–Injunction Act did not bar federal court from issuing preliminary injunction; 3) Younger abstention was not warranted; 4) mutual assistance agreement between state and tribe did not waive tribe's sovereign immunity from suit in state court; 5) doctrine of equitable recoupment did not apply to permit state and county to assert counterclaims; and 6) county attorneys were not entitled to sovereign immunity. Affirmed in part, reversed in part, and remanded.

White v. Regents of the University of California, et al.
Briefs and Pleadings
Docket No. 15-667

Issues: (From Petition) The questions presented are: 1. Whether Rule 19 of the Federal Rules of Civil Procedure mandates that a district court dismiss any case in which a Native American tribe with immunity is deemed to be a "required party." 2. Whether tribal immunity extends to cases where Rule 19 is the only basis for adding a tribe, no relief against the tribe is sought, and no other forum can issue a binding order on the dispute; and if so, whether Congress abrogated tribal immunity as a defense to claims arising under NAGPRA.

History: Petition was filed on 11/19/15. Petition was denied on 1/25/16.

Holdings Below: White v. University of California 9th Cir. 792 F.3d 1103 (2014), (From Westlaw) The Court of Appeals, Thomas, Circuit Judge, held that: (1) scientists had standing to bring action seeking a declaration that the remains were not "Native American" within meaning of the Native American Graves Protection and Repatriation Act (NAGPRA); (2) NAGPRA did not abrogate tribes' sovereign immunity from suit; (3) tribal repatriation committee was entitled to tribal sovereign immunity as an arm of the tribe; (4) tribal repatriation committee did not waive its sovereign immunity; (5) tribes and repatriation committee were necessary parties; (6) tribes and repatriation committee were indispensable parties; and (7) public rights exception to compulsory joinder rule did not apply. Affirmed.

Related News Stories: Supreme Court rules against Menominee Tribe, denies cert on NAGPRA claim (Indian Country Today) 1/26/16.

Two Shields v. Wilkinson
Briefs and Pleadings
Docket No. 15-475

Issues: (From Petition) In Temple v. Synthes Corp., 498 U.S. 5 (1990) (per curiam), this Court unanimously held that joint tortfeasors are not required parties under Rule 19(a) of the Federal Rules of Civil Procedure because “[i]t has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.” Id. at 7. Six circuits have recognized the rule that joint wrongdoers are not required parties under Rule 19(a). Three circuits now have followed the opposite rule in holding that, in some circumstances, a joint tortfeasor is a required party, while case law in the Seventh Circuit is conflicted. The Eighth Circuit below followed the minority line of the circuit split to affirm the district court’s dismissal of the action under Rule 19 for failure to join the United States. The question presented is: Does Rule 19 incorporate the common law rule that joint tortfeasors are not required parties?

History: Petition was filed on 10/13/15. Petition was denied on 12/14/15.

Holding Below: Two Shields v. Wilkinson, 8th. Cir. 790 F.3d. 791 (From Westlaw) The Court of Appeals, Murphy, Circuit Judge, held that: 1 United States was required party which should be joined if feasible, and 2 District Court did not abuse its discretion by dismissing action, on basis that United States was required party that could not be joined due to lack of waiver of sovereign immunity.

Decker v. U.S.
Briefs and Pleadings
Docket No. 15-733

Issues: (From Petition) The question of whether case law viz. state substantive lesser-included offenses must be assimilated into a prosecution where the state case law prohibits the giving of the instruction, was not addressed either in Keeble v. United States, 412 U.S. 205 (1973) or in Lewis v. United States, 523 U.S. 155 (1998); and United States v. Walkingeagle, 974 F.2d 551 (4th Cir. 1992), cert. denied, 507 U.S. 1019 (1993) presents both sides of the issue. Is the Walkingeagle dissent correct as a matter of law?

History: Petition was filed on 12/03/15. Petition was denied 1/11/16.

Holdings Below: United States v. Decker 9th Cir. 2015 WL 4999644 (2015), (From Westlaw) The Court of Appeals held that: [1] indictment was not constructively amended; [2] submission of jury instruction regarding alleged lesser-included offense of attempted sexual aggravated assault was proper; and [3] obstruction of justice sentencing increase was warranted. Affirmed.

Torres v. Santa Ynez Band of Chumash Indians
Briefs and Pleadings
Docket No. 14-1521

*Issues: (1) Was petitioner denied due process of law when the Indian tribal chairman filed a false claim in bankruptcy as part of a long pattern and campaign of harassment against the petitioner and the bankruptcy court refused to impose sanctions because it believed it lacked grounds, as much of the pattern did not occur in it? (2) Has the recent decision of this court in Michigan v. Bay Mills Indian Cmty., 82 U.S.L.W. 4398, 2014 BL 145333 (U.S. May 27, 2014) and the U.S. Court of Appeals for the Ninth Circuit recent case in Maxwell v. Cnty. of San Diego, 708 F.3d 1075 (9th Cir. 2013) expanded the liability of tribal officers engaging in unlawful and abusive acts while purporting to do so on behalf of the Indian tribe and who then seek to invoke the tribe's sovereign immunity to evade liability?

History: Petition was filed on 6/22/15. Petition was denied on 10/5/15.

*Holding Below: In re Torres, 9th Cir., 599 F. App'x 650. The district court's order affirming the bankruptcy court's order denying his request for sanctions against an Indian tribe is affirmed. The bankruptcy court did not abuse its discretion in denying debtor's motion for sanctions after concluding that the tribe did not act in bad faith by filing a proof of claim in his bankruptcy proceedings.

Sac and Fox Nation of Oklahoma v. Borough of Jim Thorpe
Briefs and Pleadings
Docket No. 14-1419

*Issues: Does the absurdity doctrine allow courts to exempt otherwise covered entities from the Native American Graves Protection and Repatriation Act based on how the entity acquired the American Indian remains?

History: Petition was filed on 6/02/15. Petition was denied on 10/05/15.

*Holding Below: Thorpe v. Borough of Thorpe, 8th Cir., 774 F.3d 1166. The district court's conclusion that the borough was a “museum” within the meaning of the Native American Graves Protection and Repatriation Act is reversed. Congress could not have intended the kind of patently absurd result that would follow from a court resolving a family dispute by applying NAGPRA to the decedent's burial in the borough under the circumstances here. The statute assumes that a museum is holding or collecting remains for the purposes of display or study, as opposed to serving as an original burial site; and assumes that the human remains were moved from their intended final resting place. Here, the decedent's wife had the legal authority to decide where he would be buried, and the remains have not been disturbed—there is nowhere for the remains to be “returned” to.

Related News Stories: To the town of Jim Thorpe: You won - now send athlete's remains home (Public Opinion) 8/5/16, U.S. Supreme Court: Jim Thorpe's body to remain in town that bears his name (Morning Call) 10/5/15, Jim Thorpe's sons ask Supreme Court to allow reburial (New York Times) 6/2/2015

Oklahoma v. Hobia
Briefs and Pleadings
Docket No. 14-1177

*Issues: Does Mich. v. Bay Mills Indian Cmty., 82 U.S.L.W. 4398, 2014 BL 145333 (U.S. May 27, 2014), require the dismissal of a state's suit to prevent tribal officers from conducting gaming that would be unlawful under the Indian Gaming Regulatory Act and a state-tribal compact when 1) the suit for declaratory and injunctive relief has been brought against tribal officials not the tribe; 2) the gaming will occur in Indian country, on the land of another tribe; and 3) the state-tribal compact's arbitration provision does not require arbitration before filing suit?

History: Petition was filed on 3/23/15. Petition was denied on 10/05/15.

*Holding Below: Oklahoma v. Hobia, 10th Cir., 775 F.3d 1204. The district court's judgment is reversed and remanded with instructions to vacate its preliminary injunction and to dismiss the state's complaint. If, as here, a complaint alleges that the challenged class III gaming activity is occurring somewhere other than on Indian lands as defined in the Indian Gaming Regulatory Act, the action fails to state a valid claim for relief. Further, the state is precluded by Part 12 of the Tribal-State Gaming Compact from suing the defendant tribal officials in federal court instead of proceeding to arbitration.

Wisconsin v. Ho-Chunk Nation
Briefs and Pleadings
Docket No. 15-114

*Issues: Does the California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), regulatory/prohibitory test that predates the Indian Gaming Regulatory Act apply to determine whether a game is Class II or Class III gaming under the IGRA?

History: Petition was filed on 7/27/15. Petition was denied on 10/05/15.

*Holding Below: Wisconsin v. Ho-Chunk Nation, 7th. Cir. 784 F.3d 1076. The ruling of the district court, holding that nonbanked electronic poker offered by a Native American tribe is a Class III game forbidden by its compact with Wisconsin, is reversed. Under the Indian Gaming Regulatory Act, Class II games are not explicitly prohibited by the laws of and played at any location in a state; they are regulated solely by the National Indian Gaming Commission. Class III games are the kind most often associated with casinos, and are regulated subject to tribe-state compacts. Here, the compact permitted Class III games only if allowed by the county, but the county refused to permit Class III games. Under California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), a state may only apply prohibitory, not regulatory, statutes to Indian gaming. Although this test predates the IGRA, it makes most sense to assume that Congress legislated against the background of Supreme Court precedent as it existed at the time. Wisconsin law purports to prohibit the kind of poker at issue here, but recent state actions, including the decriminalization of possession of electronic poker machines, along with the canon of construction that laws must be liberally construed in favor of Native Americans, lead to the conclusion that Wisconsin has not completely banned such games. They are therefore Class II games, and not forbidden by the tribe-state compact.

Back to Top

Related News

See the Tribal Supreme Court Project's July 14, 2016, Update Memoranda

Search the Indian Law Bulletins:

Loading

Basic Search Help
Operators and More Search Help

Find past years' cases from the bulletins archive.


See also the website for the Tribal Supreme Court Project for additional case information related to Native American law.

Indian Law Bulletins are a current awareness service of the National Indian Law Library. The purpose of the Indian Law Bulletins is to provide succinct and timely information about new developments in Indian Law. See the "about" page for each bulletin for specific information on monitoring, content selection criteria, and timeliness of publication.

Learn more about the Supreme Court Indian Law Bulletin.


A note about links used in this document:

Blue links are to information available free on the Internet. Green links are to information available on Westlaw, for the convenience of those who have a Westlaw account. The library is not affiliated with Westlaw.

* Issues and holdings are provided under an agreement with BNA, Inc.