Supreme Court Update Available
Categories: Tribal Supreme Court Project
On May 11, the Tribal Supreme Court Project released the latest in its periodic updates on Indian Law cases before the U.S. Supreme Court. The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. Its purpose is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. Some highlights from the latest memo are included below.
The Court has completed oral arguments for the October 2017 term. It will continue announcing opinions throughout May and June. It will also continue considering petitions for review during its May and June conferences. Several Indian law petitions have been scheduled for conference in May, and we anticipate more will be scheduled for the June conferences.
The Court has granted review in two Indian law cases that have not been decided by the Court, and we expect that these two cases will be among those decided before the Court recesses at the end of June:
WASHINGTON V. U.S. (17-269)—On January 12, 2018, the Supreme Court granted a petition for review filed by the State of Washington that challenged the Ninth Circuit’s holding that the treaty right of taking fish secured to the western Washington tribes imposes on the State a duty to make feasible repairs to its road culverts to allow for the safe passage of salmon back to their spawning grounds. Respondents are the United States and 21 Washington Tribes who exercise treaty fishing rights in the western Washington case area. This case is the latest chapter in litigation over treaty fishing rights in Washington dating back more than a century, and which has occasioned seven prior Supreme Court decisions. Washington v. United States (17-269) (the Culverts Case) was argued before the court on April 18, 2018.
The grant of certiorari encompasses three issues:
1.Whether the lower courts properly held that the State’s construction and maintenance of fish-destroying culverts violates the treaty Tribes “right of taking fish,” where it is technologically feasible to retrofit those culverts to simulate normal stream conditions;
2.Whether the lower courts properly rejected the State’s argument that, pursuant to the Court’s decision in City of Sherrill v. Oneida Indian Nation,the federal government waived its claim to enforce the Tribes’ treaty rights by purportedly approving the design and installation of the State’s barrier culverts; and
3.Whether the district court’s injunction, requiring the State to fix a substantial portion of its high priority culverts within 17 years, while allowing correction of the rest at the end of their useful life, violates principles of federalism, comity, and equity.
UPPER SKAGIT INDIAN TRIBE V. LUNDGREN (17-387)—On December 8, 2017, the Court granted review of a petition filed by the Upper Skagit Indian Tribe seeking review of a Washington Supreme Court decision, which held that an tribal sovereign immunity did not bar an in rem action against real property of the Upper Skagit Indian Tribe. In 2013, the Tribe bought property in Skagit County, Washington, and received a statutory warranty deed. Subsequently, the adjacent property owners filed a quiet title action in state court, alleging they had acquired title to a strip of land along the common boundary through adverse possession before the Tribe purchased the land. The tribe raised sovereign immunity before the state trial court, which subsequently issued summary judgement in favor of the plaintiffs.
The question presented is: 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?