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2019-20 Term
Supreme Court Cases Related to Indian Law

Cert Granted

One case from the 2018-2019 term was slated for reargument in the 2019-2020 term. One petition for certiorari was granted in an Indian law-related case.

Cert Denied

Petitions for certiorari were denied in seventeen Indian law-related cases.

Cert Granted

McGirt v. Oklahoma
Briefs, Pleadings and Oral Argument
Docket No. 18-9526

Questions Presented: Whether Oklahoma courts can continue to unlawfully exercise, under state law, criminal jurisdiction as "justiciable matter" in Indian Country over Indians accused of major crimes enumerated under the Indian Major Crimes Act--which are under exclusive federal jurisdiction.

History: Petition was granted on 12/13/19. Case was decided on 7/9/20.

Related News Stories: Muscogee (Creek) Nation's 1866 boundaries upheld by Supreme Court (High Country News) 7/10/20, Supreme Court sneaks in another Indian Country case to the docket (Indianz) 12/17/19

Sharp v. Murphy
Briefs, Pleadings and Oral Argument
Docket No. 17-1107

Questions Presented: Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).

History: Petition was granted on 5/21/18. Judgment was issued on 8/10/20. Case was restored to the calendar for reargument in the 2019-2020 term.

Ruling below: Murphy v. Royal. 866 F.3d 1164.

Related News Stories: Attorneys respond to Supreme Court's questions about Murphy case (The Journal Record) 12/28/18, Casinos on every corner? No! How Carpenter v. Murphy affects tribal sovereignty (Indian Country Today) 12/20/18, On fear, parades of horribles, and emotionally potent oversimplifications in tribal rights litigation (Turtle Talk) 12/18/1, Could half of Oklahoma end up under Native American jurisidiction? (VOA) 12/10/18, Tribal officials discuss ramifications of Murphy case (Tahlequah Daily Press) 11/30/18, Supreme Court decision could restore millions of acres to Muscogee Creek Nation (The Norman Transcript) 11/23/18, Supreme Court opens new term with major Indian law cases on docket (Indianz) 10/1/18, Muscogee Nation clashes with state in reservation boundary dispute (Indianz) 5/21/18, Trump administration sides with industry in reservation boundary case (Indianz) 4/3/18, Appeals court won't revist historic decision in Muscogee Nation boundary case (Indianz) 11/9/17.

 

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Cert Pending

Muckleshoot Indian Tribe v. Tulalip Tribes
Briefs and Pleadings
Docket No. 20-195

Questions Presented: Whether the Ninth Circuit, in conflict with precedent of this Court and the D.C. Circuit, impermissably narrowed a decades-old judicial decree so as to deprive Indian tribes of their ability to exercise treaty fishing rights.

History: Petition was filed on 8/14/20.

Ruling Below: 944 F.3d 1179.

 

Nobles v. North Carolina
Briefs and Pleadings
Docket No. 20-87

Questions Presented: How does one determine whether a defendant is an Indian? Is Indian status a jury question?

History: Petition was filed on 7/27/20.

Ruling Below: State of North Carolina v. Nobles. 838 S.E.2d 373.

United States v. Cooley
Briefs and Pleadings
Docket No. 19-1414

Questions Presented: Whether the lower courts erred in suppressing evidence on the theory that a police officer of an Indian tribe lacked authority to temporarily detain and search respondent, a non-Indian, on a public right-of-way within a reservation based on a potential violation of state or federal law.

History: Petition was filed on 6/19/20.

Ruling Below: United States v. Cooley. 919 F.3d 1135.

In Re Scott Louis YoungBear
Briefs and Pleadings
Docket No. 20-78

Questions Presented: Whether the SOR violation of civil rights via an expired sentence provides a subject matter for a habeas court. Whether petitioner can be released from Tier III (which is for life) and altogether from SOR via the habeas corpus writ.

History: Petition for writ of habeas corpus was filed on 6/17/20.

Rogers County Board of Tax Roll Corrections, et al. v. Video Gaming Technologies, Inc.
Briefs and Pleadings
Docket No. 19-1298

Questions Presented: Whether a generally applicable state ad valorem tax, as assessed against personal property owned by a non-Indian, out-of-state corporate entity and leased to a tribe for use in its casino operations, is preempted by the Indian Gaming Regulatory Act and the Court's "particularized inquiry" balancing test, see White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), where the tax does not infringe on any federal regulatory purpose contained in the IGRA, the tax does not interfere with any tribal sovereignty interests, and the tax supports relevant and important government interests, such as law enforcement, schools and health services.

History: Petition was filed on 5/14/20.

Ruling Below: 455 P.3d 918.

FMC Corporation v. Shoshone-Bannock Tribes
Briefs and Pleadings
Docket No. 19-1143

Questions Presented: Whether the Ninth Circuit correctly holds that tribal jurisdiction over nonmembers is established whenever a Montana exception is met, or whether, as the Seventh and Eighth Circuits have held, a court must also determine that the exercise of such jurisdiction stems from the tribe's inherent authority to set conditions on entry, preserve tribal self-government, or control internal relations. Whether the Ninth Circuit has construed the Montana exceptions to swallow the general rule that tribes lack jurisdiction over nonmembers.

History: Petition was filed on 3/16/20.

Ruling Below: FMC Corporation v. Shoshone-Bannock Tribes. 942 F.3d 916.

Native Wholesale Supply Company v. California, ex rel. Xavier Becerra
Briefs and Pleadings
Docket No. 19-985

Questions Presented: Whether a contract for the purchase of goods entered into, and fully performed by, an Indian Tribe outside the exterior boundaries of the state in which the Tribe's reservation is located can constitutionally subject the out of state vendor to the specific personal jurisdiction of the buyer's state, under state laws purporting to regulate the sale of those goods in the buyer's state. Whether a state has specific personal jurisdiction to regulate a purchase of goods contract between an Indian on an Indian reservation outside the state and an Indian Tribe located within the state's boundaries when the contract is performed on the out of state Indian reservation. Whether there is a constitutional or statutory right afforded to an Indian of one tribe to conduct business free from state regulation with an Indian of a different tribe, both of which are located in Indian Country, under the Indian Commerce Clause. Whether a tribally chartered corporation wholly owned by a member of a federally recognized Indian Tribe is an Inidan for purposes of the protections afforded to Indians under federal law.

History: Petition was filed on 2/3/20.

Ruling Below: Big Sandy Rancheria Enterprises v. Becerra. 395 F.Supp.3d 1314.

 

Terry v. Oklahoma
Briefs and Pleadings
Docket No. 19-403

Questions Presented: Whether the State of Oklahoma had jurisdiction to convict Petitioner for crimes he allegedly committed within the 1867 reservation boundaries of the Ottawa Tribe of Oklahoma.

History: Petition was filed on 4/4/19.

Ruling Below: Terry v. State of Oklahoma. 334 P. 3d 953.

 

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Cert Denied

Mitchell v. United States
Briefs and Pleadings
Docket No. 20-5398

Questions Presented: Whether, after Pena-Rodriguez, district courts can validly bar death-sentenced inmates from interviewing trial jurors post-verdict concerning racial bias during deliberations? Whether a change in decisional law such as Pena-Rodriguez is an "extraordinary circumstance" that justifies repoening under Federal Rule of Civil Procedure 60(b)(6)?

History: Petition was filed on 8/13/20. Petition was denied on 8/25/20.

Ruling Below: 958 F.3d 775.

 

Diné Citizens Against Ruining Our Environment, et al. v. Bureau of Indian Affairs, et al.
Briefs and Pleadings
Docket No. 19-1166

Questions Presented: Whether Federal Rule of Civil Procedure 19 requires dismall of an Adminstrative Procedure Act action challenging a federal agency's compliance with statutory requirements governing federal agency decisions, for failure to join a non-federal entity that would benefit from the challenged agency action and cannot be joined without consent.

History: Petition was filed on 3/24/20. Petition was denied on 6/29/20.

Ruling Below: Dine Citizens Against Ruining Our Environment v. Bureau of Indians. 932 F.3d 843.

Baley v. United States
Briefs and Pleadings
Docket No. 19-1134

Questions Presented: Whether, against the legal backdrop of Congress's and this Court's recognition of the primacy of state law to determine, quantify, and administer water rights, a federal court may deem federal agency regulatory action under the Endangered Species Act to constitute the adjudication and administration of water rights of tribal purposes.

History: Petition was filed on 3/13/20. Petition was denied on 6/22/20.

Ruling Below: Baley v. United States. 134 Fed.Cl. 619.

Cherokee Nation v. Bernhardt
Briefs and Pleadings
Docket No. 19-937

Questions Presented: Whether the Secretary of the Interior exceeded his statutory authority by taking land located within the reservation boundaries of one Indian Tribe and placing the land in trust for another Tribe, despite the objections of the first Tribe and in violation of a regulatory prohibition and the United States' treaty promises to the first Tribe. Whether the Court should hold this petition pending its disposition of Maine Community Health Options v. United States, No. 18-1023 (argued Dec. 10, 2019), because this case raises the same issue concerning implied repeals effected by appropriations laws and the proper standard for determining what law to apply.

History: Petition was filed on 1/23/20. Petition was denied on 6/22/20.

Ruling Below: Cherokee Nation v. Bernhardt. 936 F.3d 1142.

Noem v. Flandreau Santee Sioux Tribe
Briefs and Pleadings
Docket No. 19-1056

Questions Presented: Does the Bracker test currently serve as a consistent and predictable rule of law in light of the exponential expansion of Indian gaming since 1988 and the fiscal demands the industry now places on state budgets?

History: Petition was filed on 2/21/20. Petition denied on 5/26/20.

Ruling Below: Flandreau Santee Sioux Tribe v. Noem. 938 F.3d 928.

Neff v. United States
Briefs and Pleadings
Docket No. 19-1127

Questions Presented: Does a misrepresentation about the true identity of the owner of a business during settlement negotiations to resolve a civil lawsuit constitute a scheme to defraud the litigant of money or property in violation of the mail and wire fraud statutes? Is the doctrine of tribal sovereign immunity wholly inapplicable in a circumstance where payday loans are made by a Native American tribe in affiliation with an entity acting as an "arm of the tribe" where such loans are made at interest rates in excess of state regulations, thus rendering the loans ipso facto unlawful debts in violation of the RICO statute? Does the government have to prove willfulness to establish a RICO conspiracy to collect an unlawful debt?

History: Petition was filed on 3/13/20. Petition denied on 4/20/20.

Ruling Below: United States v. Neff. 787 Fed.Appx. 81.

Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe of Chippewa Indians
Briefs and Pleadings
Docket No. 18-1218

Question Presented: Whether the Bankruptcy Code abrogates the sovereign immunity of Indian tribes.

History: Petition was filed on 3/19/19. Petition dismissed on 4/2/20 (Rule 46 Dismissal).

Ruling below: In re Greektown Holdings, LLC. 917 F.3d 451.

James v. JW Gaming Development
Briefs and Pleadings
Docket No. 19-971

Questions Presented: Whether an Indian tribe's governing body can be stripped of its sovereign immunity from suit for actions taken by its members in their official capacities, as long as a plaintiff merely names the members individually and those officials will be bound by any judgment entered.

History: Petition was filed on 1/30/20. Petition was denied on 3/9/20.

Ruling Below: JW Gaming Development, LLC. v. James. 778 Fed.Appx. 545.

 

McMahon v. Chemehuevi Indian Tribe
Briefs and Pleadings
Docket No. 19-820

Questions Presented: Under Barker v. Harvey, 181 U.S. 481 (1901) and United States v. Title Insurance & Trust Co., 265 U.S. 472 (1924), did the Chemehuevi Indian Tribe's failure to file a land claim under the 1851 Act extinguish any of the Tribe's rights as to Section 36 as conveyed to the State of California for school purposes under the Enabling Act of 1853? Given that this Court has found that states take title to property under the Enabling Acts subject to aboriginal title only where a preexisting treaty has preserved the aboriginal title, does the absence of any Chemehuevi Indian Tribe reservation at the time Section 36 was conveyed to the State of California under the Enabling Act of 1853 bar any claim by the Tribe or its members that Section 36 constitutes Indian country? Does the Appropriation Doctrine bar any claim by the Chemehuevi Indian Tribe or its members that the 1907 Secretarial Order could transfer Section 36 to the Tribe after the property had already been conveyed to the State of California for school purposes under the Enabling Act of 1853?

History: Petition was filed on 12/23/19. Petition was denied on 3/9/20.

Ruling Below: Chemehuevi Tribe v. McMahon. 934 F.3d 1076.

Spurr v. Pope
Briefs and Pleadings
Docket No. 19-598

Questions Presented: Suppose a nontribal member is sued in a court of an Indian Tribe, and later sues in federal court claiming that the tribal court lacked jurisdiction. Can the Tribe end the federal case by invoking sovereign immunity? Does an Indian Tribe have jurisdiction to issue and enforce a personal protection order against a non-Tribal member who has none of the ties to the Tribe required by Section 1304 of the Violence Against Women Reauthorization Act?

History: Petition was filed on 11/5/19. Petition was denied on 1/13/20.

Ruling Below: Spurr v. Pope. 783 Fed.Appx. 715.

Watso v. Harpstead
Briefs and Pleadings
Docket No. 19-550

Questions Presented: Whether the lower court improperly deferred to the Indian Child Services Department Manual over state agency rules and interpretations of the Indian Child Welfare Act? Whether the Indian Child Services Division has jurisdiction over Indian kids when the mother is not Indian and does not reside on the reservation? Whether the Red Lake Band of Chippewa Indians tribe or the Shakopee Mdewakanton Sioux tribe have the right to terminate parental custody?

History: Petition was filed on 10/11/19. Petition was denied on 3/2/20.

Ruling Below: Watso v. Lourey, et al. 929 F. 3d 1024.

Alabama-Coushatta Tribe of Texas v. State of Texas
Briefs and Pleadings
Docket No. 19-403

Questions Presented: Whether IGRA authorizes gaming on tribal lands previously governed by trust statutes that prohibited gaming, as the National Indian Gaming Commission, the Department of the Interior, and the First Circuit have concluded, or not, as the Fifth Circuit has held.

History: Petition was filed on 9/23/19. Petition was denied on 1/13/20.

Ruling Below: State of Texas v. Alabama-Coushatta Tribe of Texas. 918 F. 3d 440.

Kurowski v. Estate of Kurowski
Briefs and Pleadings
Docket No. 19-477

Questions Presented: Upon tribal court exhaustion must District Courts perform a threshold inquiry to protect the Indian Petitioner's federal 25 U.S.C. Sec. 1302 right?

History: Petition was filed on 8/27/19. Petition was denied on 12/16/19.

Ruling below: 771 Fed.Appx. 649.

California Trout v. Hoopa Valley Tribe
Briefs and Pleadings
Docket No. 19-257

Questions Presented: Do states waive their authority under section 401 of the Clean Water Act if they do not approve or deny a certification request within one year, even when an applicant withdraws and resubmits the request before that one year ends?

History: Petition was filed on 8/26/19. Petition was denied on 12/09/19.

Ruling Below: Hoopa Valley Tribe v. Federal Energy Regulatory Commission. 2019 WL 3958147.

Smith v. United States
Briefs and Pleadings
Docket No. 19-5744

Questions Presented: Did the federal government’s prosecution of an Indian for violation of state law in Indian country violate federal statutes and tribal sovereignty retained by Treaty because neither the Assimilative Crimes Act nor any other federal statute includes an explicit congressional statement defining the Warm Springs Reservation, or any other Indian country, as a federal enclave or otherwise subjecting Indian country to federal criminal jurisdiction for prosecution of a state offense not specifically covered by the federal criminal code?

History: Petition was filed on 8/26/19. Petition was denied on 10/15/19.

Ruling Below: United States v. Smith. 925 F.3d 410.

Knighton v. Cedarville Rancheria of Northern Paiute Indians
Briefs and Pleadings
Docket No. 19-131

Questions Presented: “[T]he inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Montana v. United States, 450 U.S. 544, 565 (1981). The Montana Court recognized two limited narrow exceptions to that rule. But the Court has never resolved the question of whether tribal courts may ever exercise civil tort jurisdiction over nonmembers. In Plains Commerce Bank v. Long Family Land & Cattle Co., 554 U.S. 316 (2008) and in Dollar General Corporation and Dolgencorp, LLC v. The Mississippi Band of Choctaw Indians, et. al. 136 S.Ct. 2159 (2016) the issue was brought before this Court, but unanswered. This case presents the issue of: Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers? Further this case presents the issue of: If the Indian tribal courts have jurisdiction to adjudicate civil tort claims over nonmembers, what is the prerequisite notice of any such authority, what is the prerequisite consent thereto by a nonmember, and what is the viable scope of such jurisdiction so as to satisfy the Due Process rights of a nonmember?

History: Petition was filed on 7/23/19. Petition was denied on 11/12/19.

Ruling Below: Knighton v. Cedarville Rancheria of Northern Paiute Indians. 922 F.3d 892.

Cottier v. United States
Briefs and Pleadings
Docket No. 18-9261

Questions Presented: When the only evidence offered to support a murder conviction is the testimony of the government's cooperating witnesses, does it violate the Constitutional guarantees of a fair trial, due process, and an impartial jury when the jury is permitted to take an official court document into its deliberations wherein the prosecutor stipulates the government's star witness is testifying truthfully?

History: Petition was filed on 5/9/19. Petition was denied on 12/9/19.

Ruling below: 908 F.3d 1141.

Oglala Sioux Tribe, et al. v. Fleming
Briefs and Pleadings
Docket No. 18-1245

Questions Presented: Whether the Eighth Circuit erred in holding, in conflict with decisions of this Court and three other courts of appeals, that the possibility of filing a separate mandamus action was in and of itself “sufficient” to provide an “adequate opportunity” requiring Younger abstention, where plaintiffs had no opportunity to challenge the constitutionality of the preliminary hearing procedure in the course of the state’s abuse and neglect proceedings? Whether the court of appeals erred in holding, in conflict with three courts of appeals, that the “extraordinary circumstances” exception to Younger abstention applies only to flagrantly and patently unconstitutional statutes, but not to flagrantly and patently unconstitutional policies, and in concluding that separating children from their parents for sixty days with no notice or opportunity to be heard inflicted no irreparable harm?

History: Petition was filed on 3/4/19. Petition was denied on 10/7/19.

Ruling below: Oglala Sioux Tribe v. Fleming. 904 F.3d 603.

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