2017-18 Term
Supreme Court Cases Related to Indian Law

Last Updated: 10/11/17

See Cases Decided

No Indian law-related cases yet decided.

See Petitions for Certiorari granted

One petition for certiorari has been granted in an Indian law-related case.

See Petitions for Certiorari pending

Seven petitions for certiorari are pending in Indian law-related cases.

See Petitions for Certiorari denied

No petition for certiorari yet denied in Indian law-related cases.

Cases Decided


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Petitions for Certiorari Granted

Patchak v. Zinke
Briefs and Pleadings
Docket No. 16-498

Questions Presented: 1. Does a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this Court’s determination that the “suit may proceed”)—without amending underlying substantive or procedural laws—violate the Constitution’s separation of powers principles? 2. Does a statute which does not amend any generally applicable substantive or procedural laws, but deprives Petitioner of the right to pursue his pending lawsuit, violate the Due Process Clause of the Fifth Amendment?

History: Petition was filed on 10/11/2016. Petition was granted on 5/1/17.

Rulings Below: Patchak v. Jewell., U.S. Court of Appeal, District of Columbia Circuit 828 F.3d 995. The Court of Appeals, Wilkins, Circuit Judge, held that:
1) the Gun Lake Act did not encroach upon Article III judicial power of the courts to decide cases and controversies in violation of separation of powers doctrine;
2) the Act did not violate resident's First Amendment right to petition;
3) the Act did not violate resident's right to due process, even if he had a protected property right in his cause of action; and
4) the Act was not an unconstitutional bill of attainder. Affirmed.

Related News Stories: Supreme Court brings bad news to tribes by taking up land case (Indianz) 5/1/17.

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Petitions for Certiorari Pending

Herrera v. Wyoming
Briefs and Pleadings
Docket No. 17-532

Question Presented: Whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.

History: Petition was filed on 10/5/17.

Kansas v. National Indian Gaming Commission
Briefs and Pleadings
Docket No. 17-463

Question Presented: Whether NIGC legal opinions that determine whether Indian lands are eligible for gaming under IGRA are reviewable final agency actions.

History: Petition was filed on 9/25/17.

Ruling Below: State of Kansas v. Zinke, 861 F.3d 1024. The Tenth Circuit Court of Appeals, Lucero, Circuit Judge, held that: 1) NIGC Acting General Counsel's legal opinion letter was not a reviewable final agency action under Indian Gaming Regulatory Act, and 2) NIGC Acting General Counsel's legal opinion letter did not constitute a reviewable final agency action under Administrative Procedure Act. Affirmed.

Tavares v. Whitehouse
Briefs and Pleadings
Docket No. 17-429

Question Presented: Should the "detention" requirement for habeas review under the ICRA be construed "more narrowly than" the "custody" showing required under other federal habeas statutes?

History: Petition was filed on 9/21/17.

Ruling Below: Tavares v. Whitehouse, 851 F.3d 863 The Court of Appeals, M. Margaret McKeown, Circuit Judge, held that: 1) any disputes about per capita payments from an Indian tribe to a tribal member must be brought in a tribal forum, not through federal habeas proceedings; 2) temporary exclusion from Indian tribal land is not tantamount to a "detention," for purpose of detention requirement of habeas corpus provision of ICRA; and 3) exclusion of petitioners was not a "detention" within meaning of habeas provision of ICRA, as required for district court jurisdiction. Affirmed.

Window Rock Unified School District v. Reeves
Briefs and Pleadings
Docket No. 17-447

Question Presented: Whether a tribal court has jurisdiction to adjudicate employment claims by Arizona school district employees against their Arizona school district employer that operates on the Navajo reservation pursuant to a state constitutional mandate to provide a general and uniform public education to all Arizona children.

History: Petition was filed on 9/25/17.

Ruling Below: Window Rock Unified School District v. Reeves, 187 Wash.2d 857. The Court of Appeals, Friedland, Circuit Judge, held that districts were required to exhaust their tribal remedies before seeking relief in federal court.

Upper Skagit Indian Tribe v. Lundgren
Briefs and Pleadings
Docket No. 17-387

Question Presented: Does a court's exercise of in rem jurisdiction overcome the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it?

History: Petition was filed on 9/11/17.

Ruling Below: Lundgren v. Upper Skagit Indian Tribe, 187 Wash.2d 857 The Supreme Court, Johnson, J., held that tribe did not have interest in disputed property, and thus, tribe's sovereign immunity presented no barrier to the in rem adverse possession proceeding. Affirmed.

Related News Stories: Washington Supreme Court rejects sovereign immunity defense in quiet title action (National Law Review) 3/21/17.

Washington v. U.S.
Briefs and Pleadings
Docket No. 17-269

Questions Presented: 1. Whether the treaty “right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” 2. Whether the district court erred in dismissing the State’s equitable defenses against the federal government where the federal government signed these treaties in the 1850’s, for decades told the State to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violated the treaties it signed. 3. Whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon and Plaintiffs showed no clear connection between culvert replacement and tribal fisheries.

History: Petition was filed on 8/17/17.

Ruling Below: United States v. State of Washington, 864 F.3d 1017.

Related News Stories: Treaty tribes upset with appeal in major case amid salmon disaster in Washington (Indianz) 8/29/17. Washington state urges U.S. Supreme Court to review 'culverts case' (LegalNewsLine.com) 8/22/26. Washington to restore salmon habitat blocked by culverts (High Country News) 6/5/17, Court: State must replace salmon-blocking culverts (Indian Country Today) 5/30/17, Treaty tribes celebrate after court refuses to rehear salmon dispute (Indianz) 5/22/17 (Turtle Talk Materials)

Alaska v. Ross
Briefs and Pleadings
Docket No. 17-118

Question Presented: "When [the government] determines that a species that is not presently endangered will lose its habitat due to climate change by the end of the century, may NMFS list that species as threatened under the Endangered Species Act?"

History: Petition was filed on 7/23/17.

Ruling Below: Alaska Oil and Gas Association v. Pritzker, 840 F.3d 671. United States Court of Appeals, Ninth Circuit. The Court of Appeals, Paez, Circuit Judge, held that: 1) listing decision was not arbitrary and capricious; 2) decision to adopt new foreseeability analysis was not arbitrary or capricious; 3) NMFS was not required to provide evidence-based explanation for relationship between habitat loss and seal’s survival; and 4) NMFS satisfied obligation to provide state with written justification explaining why it did not adopt regulations consistent with state agency comments. Reversed.

Town of Vernon v. U.S.
Briefs and Pleadings
Docket No. 17-8

Questions Presented: 1. Whether a tribe that opted out of the Indian Reorganization Act can have its status under the Act revived under the Indian Land Consolidation Act, 25 U.S.C. § 2202, even though the United States did not hold land in trust for that tribe at the time the tribe sought a land-in-trust acquisition. 2. Whether the land-in-trust provision of the Indian Reorganization Act, 25 U.S.C. § 5108, exceeds Congress' authority under the Indian Commerce Clause, Art. I, § 8, cl. 3. 3. Whether § 5108's standardless delegation of authority to acquire land "for Indians" is an unconstitutional delegation of legislative power. 4. Whether the federal government's control over state land must he categorically exclusive for the Enclave Clause, Art. I, § 8, cl. 17, to prohibit the removal of that land from state jurisdiction.

History: Petition was filed on 6/23/17.

Ruling Below: Upstate Citizens for Equality, Inc. v. United States, 841 F.3d 556. United States Court of Appeals, the Second Circuit. The Court of Appeals, Susan L. Carney, Circuit Judge, held that:
1) organization had standing to bring action;
2) Congress's authority to legislate with respect to Indian tribes was not limited to regulation of trading activities that crossed state borders;
3) federal government's acquisition of land for Indian use pursuant to Indian Reorganization Act (IRA) was "regulation of commerce" within meaning of Indian Commerce Clause;
4) principles of state sovereignty did not impair federal government's power to acquire land on tribe's behalf;
5) Enclave Clause did not require Congress to obtain state legislature's express consent before it could take state land into trust;
6) IRA permitted United States to take land into trust for benefit of Oneida Indian Nation; and
7) Oneida Indian Nation was "tribe" within meaning of Indian Land Consolidation Act (ILCA).
Affirmed.

Massachusetts v. Wampanoag Tribe of Gay Head
Briefs and Pleadings
Docket No. 17-215

Question Presented: Whether the Indian Gaming Regulatory Act, a statute of general application, impliedly repealed federal statutes that codify state- and tribe-specific agreements giving states regulatory authority over gaming, a question that has divided the courts of appeals.

History: Petition was filed on 8/8/17.

Ruling Below: Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah) , 853 F.3d. 618. The Court of Appeals, Torruella, Circuit Judge. held that: 1) tribe made necessary threshold showing that it exercised jurisdiction over the Settlement Lands at issue; 2) tribe exercised sufficient governmental power to trigger application of IGRA to Settlement Lands; and 3) IGRA effected partial repeal of Settlement Act. Reversed.

Related News Stories: Aquinnah Wampanaog Tribe scores major win in sovereignty case (Indianz) 4/11/17, Aquinnah Wampanoag Tribe defends right to use land for gaming (Indianz) 12/7/16, Aquinnah Wampanoag Tribe gets court date in gaming lawsuit (Indianz) 10/26/16, Aquinnah Wampanoag Tribe sees support for Class II gaming plan (Indianz) 6/6/16

Town of Aquinnah v. Wampanoag Tribe of Gay Head
Briefs and Pleadings
Docket No. 17-216

Question Presented: Whether the Indian Gaming Regulatory Act, a statute of general application, impliedly repealed other federal statutes that specifically subject Indian tribes to state restrictions on gaming, a question that has divided the courts of appeals.

History: Petition was filed on 8/8/17.

Ruling Below: Massachusetts v. Wampanoag Tribe of Gay Head (Aquinnah) , 853 F.3d. 618. The Court of Appeals, Torruella, Circuit Judge. held that: 1) tribe made necessary threshold showing that it exercised jurisdiction over the Settlement Lands at issue; 2) tribe exercised sufficient governmental power to trigger application of IGRA to Settlement Lands; and 3) IGRA effected partial repeal of Settlement Act. Reversed.

Related News Stories: Aquinnah Wampanaog Tribe scores major win in sovereignty case (Indianz) 4/11/17, Aquinnah Wampanoag Tribe defends right to use land for gaming (Indianz) 12/7/16, Aquinnah Wampanoag Tribe gets court date in gaming lawsuit (Indianz) 10/26/16, Aquinnah Wampanoag Tribe sees support for Class II gaming plan (Indianz) 6/6/16

Great Plains Lending, LLC, et al., v. Consumer Financial Protection Bureau
Briefs and Pleadings
Docket No. 17-184

Question Presented: Whether a generally applicable federal statute, which is silent as to its applicability to Indian Tribes, should nevertheless be presumed to apply to Tribes.

History: Petition was filed on 8/3/17.

Ruling Below: Consumer Financial Protection Bureau v. Great Plains Lending, LLC, 846 F.3d. 1049. The Court of Appeals, Rawlinson, Circuit Judge, held that CFPB did not plainly lack jurisdiction to issue demands against entities.

Related News Stories: Court enforces CFPB civil investigative demand against tribal lending entity; rejects argument that tribal sovereignty precludes such demands (JD Supra) 2/2/17, Ninth Circuit affirms CFPB authority to investigate tribal lenders (Consumer Financial Services Review) 1/26/17

S.S. v. Colorado River Indian Tribes
Briefs and Pleadings
Docket No. 17-95

Questions Presented: 1) Do ICWA Sections 1912(d) and 1912(f) apply in a private severance action initiated by one birth parent against the other birth parent of an Indian child? 2) If so, does this de jure discrimination and separate- and-substandard treatment of Indian children violate the Due Process and Equal Protection guarantees of the Fifth and Fourteenth Amendments?

History: Petition was filed on 7/17/17.

Ruling Below: S.S. v. Stephanie H., 241 Ariz. 419. The Court of Appeals, Johnsen, J., held that: 1) Indian Child Welfare Act (ICWA) applies to a private termination of parental rights proceeding; 2) ICWA applied to private severance proceeding brought by ex-husband; and 3) evidence was sufficient to support finding that any active efforts to encourage ex-wife to address her drug issues had been successful, as required by ICWA. Affirmed.

Related News Articles: U.S. Supreme Court asked to weigh Havasu lawyer’s case (HavasuNews) 7/20/17.

Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians
Briefs and Pleadings
Docket No. 17-40

Questions Presented: Whether, when, and to what extent the federal reserved right doctrine recognized in Winters v. United States, 207 U.S. 564 (1908), preempts statelaw regulation of groundwater.

History: Petition was filed on 7/5/17.

Ruling Below: Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262. The Court of Appeals, Tallman, Circuit Judge, held that: 1) federal government impliedly reserved general water right when it established Indian reservation in desert; 2) tribe's implied general reserved water right extended to groundwater; and 3) any state water entitlements that tribe had to groundwater did not limit tribe's federal implied water right. Affirmed.

Related News Stories: 10 states back California agencies in fight with tribe over groundwater (DesertSun) 8/8/17. In court battle over groundwater rights, tribe's leader demands water treatment. (DesertSun) 8/5/17.

Desert Water Agency v. Agua Caliente Band of Cahuilla Indians
Briefs and Pleadings
Docket No. 17-42

Questions Presented: 1) Whether the Ninth Circuit’s standard for determining whether a federal reserved water right impliedly exists – that the right impliedly exists if the reservation purpose “envisions” use of water – conflicts with the standard established by this Court in United States v. New Mexico, 438 U.S. 696 (1978), which the petitioners contend held that a federal reserved water right impliedly exists only if the reservation of water is “necessary” to accomplish the primary reservation purposes and prevent these purposes from being “entirely defeated.” 2) Whether the reserved rights doctrine applies to groundwater. 3) Whether the Agua Caliente Band of Cahuilla Indians (“Tribe”) has a reserved right in groundwater, and in particular whether the Tribe’s claimed reserved right is “necessary” for primary reservation purposes under the New Mexico standard in light of the fact that the Tribe has the right to use groundwater under California law.

History: Petition was filed on 7/3/17.

Ruling Below: Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water District, 849 F.3d 1262. The Court of Appeals, Tallman, Circuit Judge, held that: 1) federal government impliedly reserved general water right when it established Indian reservation in desert; 2) tribe's implied general reserved water right extended to groundwater; and 3) any state water entitlements that tribe had to groundwater did not limit tribe's federal implied water right. Affirmed.

Related News Stories: 10 states back California agencies in fight with tribe over groundwater (DesertSun) 8/8/17. In court battle over groundwater rights, tribe's leader demands water treatment. (DesertSun) 8/5/17.

Washington State Department of Licensing v. Cougar Den
Briefs and Pleadings
Docket No. 16-1498

Questions Presented: Whether the Yakama Treaty of 1855 creates a right for tribal members to avoid state taxes on offreservation commercial activities that make use of public highways.

History: Petition was filed on 6/14/17.

Ruling Below: Cougar Den, Inc. v. Washington State Department of Licensing, Supreme Court of Washington. 392 p.3d 1014. The Supreme Court, Johnson, J., held that tribes were entitled under treaty to import fuel without holding importer's license and without paying state fuel taxes.

Upstate Citizens for Equality v. U.S.
Briefs and Pleadings
Docket No. 16-1320

Questions Presented: 1) Can Congress in the exercise of its Article 1 powers infringe, reduce or diminish the territorial integrity of a State without its prior consent? 2) Does Congress possess plenary power over Indian affairs and if so does it expand the Indian Commerce Clause to authorize the displacement of State rights to territorial integrity? 3) Does the land acquisition in this case via the mechanism of 25 USC § 465 (now 25 USC § 5108), represent a violation of the limits inherently expressed in the Indian Commerce Clause that limit Congress’ power to ’regulate’ ’commerce?’ 4) Does the 300,000-acre ancient Oneida Indian reservation in New York still exist?

History: Petition was filed on 4/26/17.

Ruling Below: Upstate Citizens for Equality, Inc. v. United States, United States Court of Appeals for the Second Circuit. 841 F.3d 556. The Court of Appeals, Susan L. Carney, Circuit Judge, held that: 1) organization had standing to bring action; 2) Congress's authority to legislate with respect to Indian tribes was not limited to regulation of trading activities that crossed state borders; 3) federal government's acquisition of land for Indian use pursuant to Indian Reorganization Act (IRA) was “regulation of commerce” within meaning of Indian Commerce Clause; 4) principles of state sovereignty did not impair federal government's power to acquire land on tribe's behalf; 5) Enclave Clause did not require Congress to obtain state legislature's express consent before it could take state land into trust; 6) IRA permitted United States to take land into trust for benefit of Oneida Indian Nation; and 7) Oneida Indian Nation was “tribe” within meaning of Indian Land Consolidation Act (ILCA). Affirmed.

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Petitions for Certiorari Denied

French v. Starr
Briefs and Pleadings
Docket No. 17-197

Questions Presented: Whether federal Indian Law allows a federal court to disregard congressional statutes in a finding of tribal jurisdiction over a nonmember. Whether consideration of land status is required in the affirmation of tribal jurisdiction over a nonmember. Whether federal Indian Law allows utilization of estoppel to determine land status in a finding of tribal jurisdiction over a nonmember. Whether an Indian Tribe can have the inherent authority to exclude on land that has not been determined to be within the boundaries of their Reservation. Whether a determination of tribal jurisdiction over a nonmember can be found without a consideration of a Montana analysis. In the determination of tribal juxisdiction over a nonmember, whether regulatory authority over the activity at issue must be considered. Whether a federal court should consider a state's competing interest in the determination of tribal jurisdiction over a nonmember.

History: Petition was filed on 8/2/17. Petition was denied on 10/10/17.

Ruling Below: French v. Starr , 2017 WL 2377982.

Hackford v. Utah
Briefs and Pleadings
Docket No. 17-44

Questions Presented: 1) Whether the Acts of Congress, authorizing the President to set apart and reserve any reservoir site or other lands necessary to conserve and protect the water supply for the Indians or for general agricultural development, diminished the Uintah and Ouray Reservation. 2) Whether as used in 18 U.S.C. § 1151(a), the term "Indian Country" includes the National Forest land, and the right of way running through the National Forest lands where the alleged criminal conduct occurred, for purpose of federal criminal jurisdiction.

History: Petition was filed on 7/3/17. Petition was denied on 10/2/17.

Ruling Below: Hackford v. Utah, 845 F.3d 1325. The Court of Appeals, Seymour, Circuit Judge, held that driver's traffic offenses did not occur on tribal land. Affirmed.

Williams v. Poarch Band of Creek Indians
Briefs and Pleadings
Docket No. 16-1324

Questions Presented: 1) Who has subject matter jurisdiction over the Native American tribes (specifically Poarch Band of Creek Indians) when they are in violations of an employee's civil rights due to age discrimination amended (ADEA) disparate treatment, and 14th Amendment rights? 2) What was Congress objective by intentionally omitting abrogating tribal immunity when it affinnatively omitted the exemption from suit for Indian tribes from the definition of employer that was borrowed from Title VII? 3) Are Native American tribes (specifically the Poarch Band of Creek Indians) considered employers, and why do they not have to abide by the rules and regulations of the Equal Employment Opportunity Commission (EEOC)? 4) If the courts do not set a precedent, who will stop this injustice by Native American tribes (specifically the Poarch Band of Creek Indians) from mistreating employees and hiding behind the cloak of Indian tribal sovereign immunity?

History: Petition was filed on 3/1/17. Petition was denied on 10/2/17.

Ruling Below: Williams v. Poarch Band of Creek Indians, 839 F.3d 1312. The Court of Appeals, C. Lynwood Smith, Jr., District Judge, sitting by designation, held that: 1) Congress's failure to include phrase "an Indian tribe" in list of entities excluded from ADEA's definition of "employers" did not demonstrate intent to abrogate tribal sovereign immunity as bar to suit under ADEA, and 2) even though ADEA was statute of general applicability, and tribe was generally subject to its terms, doctrine of tribal sovereign immunity protected tribe from ADEA suits. Affirmed.

Related New Stories: Indian tribe has sovereign immunity from employee's ADEA claim (CCH's Employment Law Daily) 10/21/16, Tribe immune from age-discrimination suit (Courthouse News) 10/20/16, Poarch Band of Creek Indians can't be sued for firing employee (Indianz) 10/20/16, Eleventh Circuit holds ADEA does not abrogate tribal immunity (Turtle Talk) 10/19/16.

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Related News

Treaty tribes upset with appeal in major case amid salmon disaster in Washington (Indianz) 8/29/17. 10 states back California agencies in fight with tribe over groundwater (DesertSun) 8/8/17.

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