New Supreme Court Update Available


The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website.

At present, two important Indian trust cases are pending on the merits before the Court. First, the Tribal Supreme Court Project is finalizing the preparation of amicus briefs in support of the Tribe in United States v. Jicarilla Apache Nation which will be argued before the Court on April 20, 2011. In this case, the United States is challenging the Federal Circuit’s ruling that the federal government “cannot deny an Indian tribe’s request to discover communications between the United States and its attorneys based on the attorney-client privilege when those communications concern the management of an Indian trust.” Second, the Project continues to wait for the Court to issue its decision in United States v. Tohono O’odham Nation which was argued on November 1, 2010. The delay in issuing an opinion may indicate a lack of consensus on the Court regarding the broad rule requested by the United States which would preclude any Indian tribe from bringing money damages claims in the Court of Federal Claims if they have filed a “related” tribal trust mismanagement case in another court even though it seeks different (e.g. equitable and injunctive) relief.

As reported last month, the Court has called for the views of the Solicitor General in three other Indian law cases: Osage Nation v. Irby (reservation disestablishment); Brown (formerly Schwarzenegger) v. Rincon Band (IGRA “revenue” sharing); and Miccosukee Tribe v. Kraus-Anderson (enforcement of tribal court judgments). More than likely, the Solicitor General will not file his briefs until after the Court’s April 2011 oral argument session, but the petitions will likely be considered in conference before the Court adjourns for its summer recess at the end of June 2011.

You can find copies of briefs and opinions on the major cases we track on the Project’s website.