2016-17 Term
Supreme Court Cases Related to Indian Law
Two Indian law-related cases were
decided.
Petition for certiorari was denied in 16 Indian law-related cases.
Cert Granted
Synopsis: Trademark applicant sought review of the decision of the Patent and Trademark Office's (PTO) Trademark Trial and Appeal Board (TTAB), 2013 WL 5498164, which affirmed an examining attorney's refusal to register the trademark “THE SLANTS” for a musical band, on grounds that the mark was disparaging to people of Asian descent. A panel of the United States Court of Appeals for the Federal Circuit, Moore, Circuit Judge, 785 F.3d 567, affirmed, but on rehearing en banc, the Court of Appeals, Moore, Circuit Judge, 808 F.3d 1321, vacated and remanded. Certiorari was granted.
History: Petition was filed on 4/20/2016. Petition for certiorari was granted on 9/29/2016. Decided 6/19/2017.
Holdings: The Supreme Court, Justice Alito, held that disparagement clause of Lanham Act, prohibiting federal trademark registration for marks that might disparage any persons, living or dead, was facially invalid under First Amendment protection of speech.
Affirmed.
Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justices Ginsburg, Sotomayor, and Kagan joined.
Justice Thomas filed an opinion concurring in part and concurring in the judgment.
Justice Gorsuch took no part in the consideration or decision of the case.
Related News Stories: Supreme Court ruling is great for Washington Redskins in trademark battle (Forbes) 6/19/17. Supreme Court rules First Amendment protects disparaging trademarks (National Law Journal) 6/19/17, Justices strike down law banning disparaging trademarks (New York Times) 6/19/17, Court case may affect mascot debate in which Cherokee Nation is invested (Edmond Sun) 1/27/17, Supreme Court appears likely to allow Washington Redskins to protect their name (New York Magazine) 1/19/17, Battle on fffensive trademarks hits high court (Courthouse News) 1/17/17, Justices take up trademark case that could affect Redskins (Record Searchlight) 10/5/16, Redskins, rock band form unusual alliance in trademark fight (Palm Beach Post) 9/21/16
Synopsis: Motor vehicle driver and passenger brought action against Indian tribe member in his individual capacity, alleging that member's negligence in driving tribe-owned limousine carrying patrons of tribe-owned casino caused off-reservation motor vehicle accident on interstate freeway. The Connecticut Superior Court, Judicial District of New London, Cole–Chu, J., 2014 WL 5354956, denied member's motion to dismiss based on tribal sovereign immunity. Member appealed. The Connecticut Supreme Court, Eveleigh, J., 320 Conn. 706, 135 A.3d 677, reversed and remanded with directions. Certiorari was granted.
History: Petition was filed on 6/13/2016. Petition for certiorari was granted on 9/29/2016. Case was decided on April 25, 2017.
Holdings: 1) In a suit brought against a tribal employee in his individual capacity, the employee, not the tribe, is the real party in interest and the tribe’s sovereign immunity is not implicated. Pp. 5–8.
(a) In the context of lawsuits against state and federal employees or entities, courts look to whether the sovereign is the real partyin interest to determine whether sovereign immunity bars the suit, see Hafer v. Melo, 502 U. S. 21, 25. A defendant in an official-capacity action—where the relief sought is only nominally against the official and in fact is against the official’s office and thus the sovereign itself—may assert sovereign immunity. Kentucky v. Graham, 473 U. S. 159, 167. But an officer in an individual-capacity action— which seeks “to impose individual liability upon a government officerfor actions taken under color of state law,” Hafer, 502 U. S., at 25— may be able to assert personal immunity defenses but not sovereign immunity, id., at 30–31. The Court does not reach Clarke’s argumentthat he is entitled to the personal immunity defense of official immunity, which Clarke raised for the first time on appeal. Pp. 5–7.
(b) Applying these general rules in the context of tribal sovereign immunity, it is apparent that they foreclose Clarke’s sovereign immunity defense. This action arises from a tort committed by Clarke on a Connecticut interstate and is simply a suit against Clarke to recover for his personal actions. Clarke, not the Gaming Authority, is the real party in interest. The State Supreme Court extended sovereign immunity for tribal employees beyond what common-law sovereign immunity principles would recognize for either state or federalemployees. Pp. 7–8.
2) An indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not fall under its protective cloak. Pp. 8–12.
(a)
This conclusion follows naturally from the principles discussed above and previously applied to the different question whether a state instrumentality may invoke the State’s immunity from suiteven when the Federal Government has agreed to indemnify that instrumentality against adverse judgments, Regents of Univ. of Cal. v. Doe, 519 U. S. 425. There, this Court held that the indemnification provision did not divest the state instrumentality of Eleventh Amendment immunity, and its analysis turned on where the potential legal liability lay, not from whence the money to pay the damagesaward ultimately came. Here, the Connecticut courts exercise no jurisdiction over the Tribe or Gaming Authority, and their judgmentswill not bind the Tribe or its instrumentalities in any way. Moreover, indemnification is not a certainty, because Clarke will not be indemnified should the Gaming Authority determine that he engaged in “wanton, reckless, or malicious” activity. Mohegan Tribe Code §4–52. Pp. 8–10.
(b)
Courts have extended sovereign immunity to private healthcare insurance companies under certain circumstances, but those cases rest on the proposition that the fiscal intermediaries areessentially state instrumentalities, and Clarke offers no persuasivereason to depart from precedent and treat a lawsuit against an individual employee as one against a state instrumentality. Similarly,this Court has never held that a civil rights suit under 42 U. S. C. §1983 against a state officer in his individual capacity implicates the Eleventh Amendment and a State’s sovereign immunity from suit. Finally, this Court’s conclusion that indemnification provisions do not alter the real-party-in-interest analysis for sovereign immunity purposes is consistent with the practice that applies in the contexts ofdiversity of citizenship and joinder. Pp. 10–12.
320 Conn.706, 135 A. 3d 677, reversed and remanded.
Related News Stories: Matthew Fletcher: Expect 'uptick' in litigation after Supreme Court decision (Indianz) 5/17/17. The Supreme Court's decision in Lewis v. Clarke potentially opens the door of tort liability for tribal employees (JD Supra) 4/27/17. Jenn Weddle: 'Best possible result' from Supreme Court in sovereignty case (Indianz) 4/25/17.Supreme Court rules tribal immunity does not apply to individuals (Jurist Twenty) 4/25/17. High court kills tribal immunity for casino employees (Courthouse News Service) 4/25/17. US Supreme Court takes narrow view on tribal immunity (The Guardian) 4/25/17. Supreme Court refuses to extend tribal immunity to casino limo driver (Forbes) 2/25/17. Supreme Court hands defeat to tribal interests in sovereignty case (Indianz) 4/25/17. Connecticut suit could affect tribal compacts (Albuquerque Journal) 3/9/17. Tribal sovereign immunity on trial at US Supreme Court (Indian Country Today) 2/3/17. Argument analysis: Court unlikely to resolve complex issues about scope of sovereign and tribal immunity (SCOTUSblog) 1/10/17. Justices weigh tribal immunity for limo crash (Courthouse News) 1/09/17. Argument preview: The perversity of tribal sovereignty (SCOTUSblog) 1/05/17. Supreme Court schedules oral argument in tribal immunity case (Indianz) 12/6/2016. U.S. Supreme Court to consider tribal sovereign immunity issue related to individual tribal employees (Littler) 11/21/16. Supreme Court case could expose Indian tribes to new legal risks (The Conversation) 11/13/16. Lewis and Clarke get their day in court. (Atlantic) 9/29/16.
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Cert Denied
City of Myton, Utah v. Ute Indian Tribe of the Uintah and Ouray Reservation
Briefs and Pleadings
Docket No. 16-868
Questions Presented: 1) Did the court of appeals err in reassigning District
Court Judge Bruce S. Jenkins for adhering to this
Court’s verbatim holding in Hagen?
2) Did the court of appeals err by holding that
the town of Myron, Utah, is not removed from Indian
country for the purposes of criminal jurisdiction under
18 U.S.C. § 1151?
History: Petition was filed on 1/6/17. Petition was denied (Rule 43) on 7/3/17.
Ruling Below: Ute Indian Tribe of the Uintah v. Morton, United States Court of Appeals, Ninth Circuit. 835 F.3d 1255. The Court of Appeals, Gorsuch, Circuit Judge, held that:
1) issue preclusion barred relitigation of whether parcel of land within city was Indian country;
2) equitable principles did not warrant eliminating checkerboard jurisdiction; and
3) doctrine of laches did not apply.
Reversed.
Questions Presented: 1) Does the Secretary of the Interior have unlimited
authority pursuant to 25 U.S.C. § 465, 25 U.S.C. §
9 and 43 U.S.C. § 1457 to promulgate and exercise
the 25 CFR Part 151 regulations to acquire any fee
land from state jurisdiction and place it into
federal trust status?
2) Whether the Second Circuit misinterpreted the
"fact" discussion in this Court’s majority opinion in
City of She~ill v. Oneida I~dian Nation
upholding its prior decision that the Oneida state
Indian reservation was federal Indian country
affecting the authority of the Secretary of the
Interior to acquire 14,000 acres of fee land to place
into federal trust in the Records of Decision
prejudicing these petitioners in applying 5 U.S.C.
§ 706 in this case.
3) What is left of the Equal Footing Doctrine if the
Secretary of the Interior can acquire fee land from
the original colony of the State of New York and
place it into federal trust for an Indian tribe to
exercise jurisdiction over it as federal territorial
land?
History: Petition was filed on 3/9/17. Petition was denied on 5/15/17.
Ruling Below: Central New York Fair Business Association v. Jewell, United States Court of Appeals, Second Circuit. 2016 WL 7177757. The Court of Appeals held that:
[1] principles of state sovereignty did not impair Department from accepting land into trust;
[2] associations and lawmakers failed to sufficiently allege that individual tribal defendant engaged in unlawful conduct; and
[3] challenge to Department’s action under the Administrative Procedure Act (APA) was meritless.
Affirmed.
Related News Stories: Supreme Court turns back challenge to 2008 land trust decision (Rome Sentinel) 5/17/17. Supreme Court won't disturb victory in Oneida Nation land case (Indianz) 5/15/17.
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. Petition was denied on 5/1/17.
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.
Questions Presented: If the District Court refuses Plaintiffs’ Motion to
Reopen its case based squarely upon whether the
case has no chance of succeeding on its merits, is
it a violation of Plaintiffs’ Due Process rights for
the District Court to ignore new precedent repeatedly
brought to its attention that would allow
Plaintiffs to succeed on the merits?
History: Petition was filed on 1/3/17. Petition was denied on 4/17/17.
Ruling Below: Cheung Yin Sun v. Mashantucket Pequot Gaming Enterprise, United States Court of Appeals, Second Circuit. 663 Fed.Appx. 57. The Court of Appeals held that gamblers failed to establish that district court had personal jurisdiction over Indian casino, its employees, and state police officer.
Affirmed.
Related News Stories: Supreme Court declines to hear yet another Indian Country case (Indianz) 4/17/17.
Questions Presented: The court of appeals held that the Secretary of the
Interior may take land into trust for a tribe even if
that tribe was not recognized in 1934 and even if its
members did not reside in Indian country. The questions
presented are as follows:
1. Whether, to have been a “recognized Indian
tribe now under Federal jurisdiction” in 1934, a tribe
must have been “recognized” at that time.
2. Whether, to have been “under Federal jurisdiction”
in 1934, a tribe must have been located in Indian
country—that is, on land over which the United States
exercised jurisdiction to the exclusion of State jurisdiction.
History: Petition was filed on 10/27/16.Petition was denied on 4/3/17.
Rulings Below: Confederated Tribes of the Grand Ronde Community v. Jewell, U.S. Court of Appeal, District of Columbia Circuit 830 F.3d 552. The Court of Appeals, Wilkins, Circuit Judge, held that:
1) term “recognized,” as used in larger phrase “recognized Indian tribe now under Federal jurisdiction” in IRA's definition of “Indian,” was ambiguous under Chevron analysis;
2) Secretary reasonably interpreted term “recognized,” as used in IRA section defining “Indian,” so that there was no temporal limitation on when recognition occurred;
3) term “under federal jurisdiction,” as used in larger phrase “recognized Indian tribe now under Federal jurisdiction” in IRA's definition of “Indian,” was ambiguous under Chevron analysis;
4) Secretary reasonably interpreted term “under federal jurisdiction,” as used in IRA”s definition of “Indian,” so as to require two-part inquiry;
5) Secretary reasonably applied its two-part inquiry as to whether tribe was “under federal jurisdiction”; and
6) Secretary reasonably found that land parcel was within broader area of historical significance to tribe, and thus met initial-reservation exception under IGRA.
Affirmed.
Related News Stories: Carcieri rule holding strong before Supreme Court (Indian Country Today) 4/6/17, Supreme Court denies hearing for Cowlitz casino case (The Chronicle) 4/4/17, Indian Country secures victory with end to long-running land case (Indianz) 4/4/17, Mashpee tribe lauds high court move (Cape Cod Times) 4/3/17, The consequences of divide and conquer: Carcieri redux (Turtle Talk) 11/18/16.
Questions Presented: 1) Whether Congress abrogated the sovereign
immunity of an Indian tribe under 15 U.S.C. § 1681, et
seq., by providing that "any...government" may be liable
for damages.
2) Whether an individual who receives a computer-generated
cash register receipt displaying more than
the last five digits of the individual’s credit card number
and the card’s expiration date has suffered a concrete
injury sufficient to confer standing under Article III of
the United States Constitution.
History: Petition was filed on 12/7/16. Petition for certiorari was denied on 3/20/17.
Ruling Below: Meyers v. Oneida Tribe of Indians of Wisconsin , United States Court of Appeals, Seventh Circuit. 836 F.3d 818. The Court of Appeals, Rovner, Circuit Judge, held that tribe was immune from consumer's suit alleging violation of FACTA.
Affirmed.
Related News Stories: Oneida Nation prevails as Supreme Court declines immunity case (Indianz) 3/20/17
Questions Presented: The questions presented are (1) whether the
doctrine of res judicata and collateral estoppel
precluded the Assistant Secretary of the Department of
Interior in 2011 from revisiting his predecessor’s 1995
final and conclusive decision about petitioners’ status
as Native Americans; and (2) whether the Assistant
Secretary’s 2011 decision to declassify petitioners’
Native American Indian status violated the
Administrative Procedures Act.
History: Petition was filed on 12/19/16. Petition was denied on 2/27/17.
Ruling Below: Alto v. Jewell, United States Court of Appeals, Ninth Circuit. 2016 WL 5076043. [1] Assistant Secretary of the Interior for Indian Affairs had authority to review prior enrollment decision, where former assistant secretary predicated her decision on inaccurate assumption; and [2] Assistant Secretary’s decision approving plaintiffs’ disenrollment was not arbitrary, capricious, or abuse of discretion. Affirmed.
Related News Stories: Supreme Court turns down another tribal disenrollment dispute (Indianz) 2/27/17
Question Presented: The question presented is whether the Assistant
Secretary, Department of Interior, Bureau of Indian
Affair’s decision to recognize a void tribal ordinance
stripping petitioners of their tribal membership--a
tribal ordinance enacted by a minority six-member
tribal committee pursuant to authority from a tribal
Constitution which was never legally ratified by the
Band as a whole--violates appellants’ due process
rights and the Administrative Procedures Act.
History: Petition was filed on 11/14/16. Petition was denied on 1/23/17.
Ruling Below: Aguayo v. Jewell, United States Court of Appeals, Ninth Circuit. 827 F.3d 1213. The Court Of Appeals, M. Smith, Circuit Judge, held that:
1) BIA's determination that it would decline to intervene in enrollment dispute on behalf of disenrolled members was final agency action subject to judicial review;
2) any procedural protections in Indian Reorganization Act (IRA) for adoption of governing documents by an Indian tribe did not apply;
3) exception to judicial review under APA for actions that were committed to agency discretion by law did not apply;
4) cause of action accrued, and six-year limitations period began to run, when BIA's approval of tribe's constitution was final;
5) Assistant Secretary did not abuse his discretion;
6) general trust relationship between United States and Indian tribes did not compel a finding by Court of Appeals that BIA acted arbitrarily or capriciously; and
7) res judicata and collateral estoppel principles did not apply.
Affirmed.
Questions Presented: 1) Whether the Ninth Circuit Court of
Appeals' nunc pro tune ruling depriving Petitioners
of substantive procedural rights was in error?
2) Whether the Ninth Circuit Court of
Appeals' ruling on the statute of limitations was in
error?
History: Petition was filed on 11/3/16. Petition was denied on 1/9/17.
Rulings Below: Nisenan Tribe of the Nevada City Rancheria v. Jewell, U.S. Court of Appeal, District of Columbia Circuit 650 Fed.Appx. 497. The Court of Appeals held that:
1) District Court had jurisdiction to grant plaintiffs' motion to correct clerical error in stipulation for entry of judgment in earlier action nunc pro tunc, and
2) government did not waive statute of limitations as affirmative defense.
Affirmed.
Questions Presented: Whether the Court of Appeals deviated from this
Court's decision in Carcieri v Salazar, 555 U.S. 379
(2009) which held that the Secretary of Interior's
Federal Acknowledgment Process (FAP) established
in 25 C.F.R. Part 83 is not determinative as to whether
Indian Tribe is "recognized" for the purposes of the
Indian Reorganization Act (25 U.S.C. § 479)?
Whether the Secretary of Interior can avoid performing
her mandatory non-discretionary duty under the
Indian Reorganization Act (25 U.S.C. § 476) to call
elections to ratify tribal constitutional documents
within a reasonable time by requiring a tribe to
exhaust administrative remedies estimated to require
30 years to complete?
History: Petition was filed on 10/27/16. Petition was denied on 1/9/17.
Rulings Below: Mackinac Tribe v. Jewell., U.S. Court of Appeal, District of Columbia Circuit 828 F.3d 995. The Court of Appeals held that tribe was required to exhaust administrative remedies by first seeking acknowledgment through Part 83 Process.
Affirmed.
Questions Presented: The questions presented are:
(1) Whether ICWA applies where the child has not been removed from an Indian family or community. (2) Whether ICWA’s adoptive placement preferences, 25 U.S.C.1915(a), require removal from a foster placement made under 1915(b), for the purpose of triggering the adoptive placement preferences contained in 1915(a). (3) Whether the state courts erred in holding that "good cause" to depart from ICWA’s placement preferences must be proved by "clear and convincing evidence" - contrary to the text and structure of the state and the decision of at least one other state court of last resort - or otherwise erred in their interpretation of "good cause."
History: Petition was filed on 10/07/2016. Petition was denied on 1/9/17.
Rulings Below: In re Alexandria P., Court of Appeal, Second Dist., Div. 5, California 1 Cal.App.5th 331. The Court of Appeal, Kriegler, J., held that:
1) trial court did not exceed scope of remand or disregard law of the case by considering impact on child's cultural identity if she were to remain foster parents;
2) good cause to depart from ICWA's placement preferences did not exist as a matter of law;
3) substantial evidence supported finding that there was no good cause to depart from ICWA's placement preferences;
4) any error in excluding full report prepared by bonding and attachment expert was harmless;
5) trial court did not abuse its discretion in considering social worker's report without allowing foster parents to cross-examine him; and
6) trial court did not abuse its discretion by denying foster parents' request to present additional evidence or testimony.
Affirmed.
Related News Stories: ICWA: Supreme Court denies hearing in Lexi case (Indian Country Today) 1/11/17
Question Presented: Whether federal common law claims of trespass
and ejectment are available to American
Indians when Congressional acts specifically
identify the American Indian group to which
land is awarded and when the public lands
are actually set apart for their permanent occupancy
History: Petition was filed on 8/31/2016. Petition was denied on 11/7/16.
Ruling Below: Wolfchild v. Redwood County, Eighth Circuit Court of Appeals 824 F.3d 761. The Court of Appeals, Bright, Circuit Judge, held that:
1) plaintiffs did not have cause of action under federal common law for violation of possessory rights to aboriginal land;
2) federal statute that authorized Interior Secretary to set apart land for loyal Mdewakanton did not create private remedy; and
3) district court abused its discretion in awarding sanctions.
Affirmed in part, vacated in part, and remanded.
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. Petition was denied on 10/3/2016.
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.
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. Petition was denied on 10/3/2016.
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.
Questions Presented: 1) 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.
2) 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.
3) 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. Petition was denied on 10/3/2016.
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.
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. Petition was denied on 10/3/2016.
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.
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