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.
The U.S. Supreme Court is still in summer recess, with the October 2010 Term scheduled to start on Monday, October 4, 2010. After a relatively quiet October 2009 Term in which the Court did not issue a single Indian law decision, Indian country may be facing rough waters once again with the upcoming October 2010 Term. The Court has already granted review in United States v. Tohono O’odham Nation, with the likelihood of cert grants in at least one, possibly two or more other Indian law and Indian law-related cases.
Next Monday, September 27, 2010, the Supreme Court will conduct its opening conference. Eight of the 16 petitions currently pending before the Court (see full report) will be considered during this conference. The Project has been closely monitoring each of these petitions, in particular petitions in which the tribal interests prevailed in the lower courts. The Project is working with the Tribes and their attorneys in securing those victories through the denial of certiorari. For example, the United States just filed a petition in United States v. Jicarilla Apache Nation seeking review of the decision of the U.S. Court of Appeals for the Federal Circuit which recognized a fiduciary exception to the attorney-client privilege in tribal trust cases. This fiduciary exception allows Indian tribes to obtain information regarding communications between the Department of the Interior and its attorneys relating to trust management otherwise protected by the privilege.
A second example is the State of Alaska’s petition in Hogan v. Kaltag Tribal Council asking the Court to review a Ninth Circuit decision which upheld the authority of the Kaltag Tribal Court over a tribal member-child placement proceeding. In the view of the State of Alaska, since there are no reservations (with one exception) in Alaska, Native villages have no authority under the Indian Child Welfare Act over child placement proceedings, except the authority to request transfer of tribal member-child placement proceedings from state courts. The Court invited the U.S. Solicitor General to file a brief expressing the views of the United States. The good news is that the Solicitor General recommended that the Court deny review. This petition will be considered in the Court’s opening conference.
One final example is the petition filed in Madison County v. Oneida Indian Nation of New York seeking review of a decision by the U.S. Court of Appeals for the Second Circuit which held that the Tribe is immune from suit in foreclosure proceedings involving property owned by the Tribe for non-payment of county taxes. This petition is the latest chapter of a lengthy dispute over payment of taxes addressed by the Supreme Court in 2005 in City of Sherrill v. Oneida Indian Nation of New York. Five amicus briefs, including an amicus brief on behalf of the State of New York joined by seven other states, have been filed in support of the petition. This petition will likely be scheduled for conference in early October.