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 (http://www.narf.org/sct/index.html).
Although no Indian law cases have been granted review by the Court, several new petitions have been filed in the past several weeks. At present, there are 16 petitions pending, with a total of ten petitions having been denied this term. We are monitoring several petitions closely, including: (1) Wolfchild v. United States, a case that could become a vehicle for the Court to further erode the nature of the United States’ trust responsibility, and to limit the scope of the fiduciary duties the United States owes to the Indian people; (2) Rosenberg v. Hualapai Indian Nation, a case involving the doctrine of tribal sovereign immunity as it applies to tribal enterprises; and (3) United States v. Tohono O’odham Nation, another case involving claims for breach of fiduciary duties which could impact a number of other cases filed by Indian tribes against the United States in both the Court of Federal Claims and the Federal District Court seeking separate relief.
However, most of the resources of the Tribal Supreme Court Project have been focused on litigation pending in the lower courts. Project attorneys are tracking lower court litigation based on subject matter area to allow the Project an opportunity to assist in earlier stages of litigation. For example, the Project has been monitoring five cases involving challenges to Reservation status of certain lands (diminishment) or challenges to the continuing existence of an entire Reservation (disestablishment). Currently, in Osage Nation v. Irby (Oklahoma Tax Commission), the Project is working diligently with the attorneys representing the Osage Nation in developing an amicus strategy and preparing amicus briefs in support of their petition for rehearing of a Tenth Circuit decision which held that the legislative history and subsequent events to the Osage Allotment Act evidence Congress’ intent to disestablish the Osage Reservation.
In similar fashion, the Project has been monitoring 11 cases involving challenges to the authority of the Secretary to take land in trust for tribes based on the Supreme Court’s decision last year in Carcieri v. Salazar. Currently, the Project is preparing materials and developing strategy in anticipation of amicus support for the tribes and the United States as the Carcieri-related litigation works its way through the courts. The Project is also tracking litigation involving challenges to the doctrine of tribal sovereign immunity; challenges to the authority of Tribes to regulate the activities of non-Indians on-reservation or adjudicate disputes involving non-Indians; attempts to undermine tribal cultural values and laws protecting Native religious freedom; and attacks against the authority of tribal courts to impose consecutive sentences of more than one-year for violent crimes committed by Indians on the reservation.