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Tribal Supreme Court Project
Attorney: Richard Guest

Case Update

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 (www.narf.org/sct/index.html).

CASES GRANTED REVIEW BY THE SUPREME COURT:

MICHIGAN V. BAY MILLS INDIAN COMMUNITY (NO. 12-505) - On December 2, 2013, the Supreme Court is scheduled to hear oral argument involving the petition filed by the State of Michigan seeking review of a decision by the U.S. Court of Appeals for the Sixth Circuit which held that federal courts lack jurisdiction to adjudicate the state's IGRA claims to the extent those claims are based on an allegation that the Tribe's casino is not on Indian lands and that such claims are also barred by the doctrine of tribal sovereign immunity. The Solicitor General had filed a brief expressing the views of the United States and recommending that the Court deny review of the petition.

The Bay Mills Indian Community opened a casino in late 2010 on fee land about 90 miles south of its Upper Peninsula reservation. The Tribe had purchased the land with interest earnings from a settlement with the federal government over compensation from land ceded in 1800s treaties. Under the Michigan Indian Land Claims Settlement Act of 1997, any land acquired with these settlement funds would "be held as Indian lands are held." Michigan argued that the tribe opened the casino on lands that do not qualify as "Indian lands" under IGRA and in violation of a state-tribal gaming compact. The questions presented in the petition are:

The Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (IGRA), authorizes an Indian tribe to conduct class III gaming under limited circumstances and only on "Indian lands." 25 U.S.C. § 2710(d)(1). This dispute involves a federal court's authority to enjoin an Indian tribe from operating an illegal casino located off of "Indian lands." The petition presents two recurring questions of jurisprudential significance that have divided the circuits: (1) Whether a federal court has jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands; and (2) Whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside of Indian lands.

On August 30, 2013, Michigan filed its opening brief and is using this case to mount a full frontal attack on tribal sovereign immunity and the authority of states to regulate "gaming activity" under the Indian Gaming Regulatory Act (IGRA). First, Michigan asks the Court to examine "IGRA as a whole" to find Congressional intent to waive tribal sovereign immunity or, in the alternative, to overrule Santa Clara Pueblo and apply a "less strict standard" when considering whether legislation such as IGRA abrogates tribal sovereign immunity. Second, if the statutory arguments are not successful, Michigan asks the Court to recognize that tribal sovereign immunity "is a federal common law doctrine" created by this Court and subject to adjustment by this Court. Thus, according to Michigan, the Court should narrowly read Kiowa as a "contract-based ruling" and (at the extreme) hold that a tribe's immunity is limited to its on-reservation governmental functions.

On September 6, 2013, two amicus briefs in support of Michigan were filed. First, the State of Alabama, joined by fifteen other states, filed an amicus brief asking the Court to allow states to sue tribes for declaratory and injunctive relief when tribes are operating "unlawful gambling, payday lending, and similar activities" within the state. The states' amicus brief characterize the commercial activities of Indian tribes as "hav[ing] built everything from brick-and-mortar casinos to Internet-based banks, based on the perception that they can evade federal and state regulations within state territory." Second, the State of Oklahoma filed its own amicus brief to the draw the Court's attention to three examples of what it characterizes as the failure of the United States and the National Indian Gaming Commission to stop "illegal tribal gambling" within the state.

The Tribe's response brief is due on October 24, 2013, with any supporting amicus briefs due on October 31, 2013.

PETITIONS FOR A WRIT OF CERTIORARI PENDING:

Currently, several petitions for a writ of certiorari have been filed in Indian law and Indian law-related cases and are pending before the Court:

Grand Canyon Skywalk Development LLC v. Grand Canyon Resort Corporation (No. 13-313) - On September 5, 2013, Grand Canyon Skywalk Development, a non-Indian corporation, filed a petition seeking review of a decision by the U.S. Court of Appeals for the Ninth Circuit which held that the petitioner must exhaust its remedies in tribal court before it may proceed in federal court since the tribal court does not plainly lack jurisdiction over the action against tribal officials. The brief in opposition is due on November 12, 2013.

Grand River Enterprises Six Nations v. Oklahoma (No. 13-266) - On August 26, 2013, the Grand River Enterprises Six Nations, a Canadian company owned by members of the Six Nations which manufactures tobacco products, filed a petition seeking review of a decision by the Oklahoma Court of Appeals which held that the Escrow Statute enacted by Oklahoma pursuant to the Master Settlement Agreement extends to all on-reservation sales of cigarettes-including all sales by Indian tribes to tribal members. The state's brief in opposition is due on October 28, 2013.

Madison County v. Oneida Indian Nation of New York (No. 12-604) - On November 12, 2004, Madison County and Oneida County filed a petition seeking review of a decision by the U.S. Court of Appeals for the Second Circuit which affirmed the district court's dismissal of their counterclaim that the Oneidas' reservation was disestablished. The question presented in the petition is: "Does the 300,000-acre ancient Oneida reservation in New York still exist, neither disestablished nor diminished, despite (1) the federal government's actions taken in furtherance of disestablishment (including, but not limited to, the 1838 Treaty of Buffalo Creek); (2) this Court's holding in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 214 (2005) ("Sherrill") that the Oneida Indian Nation of New York cannot exercise sovereignty over lands it purchases in the ancient reservation area; and (3) this Court's finding in that case that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries?" Three amicus briefs in support of the petition have been filed by: the State of New York; Cayuga and Seneca Counties; and, the Citizens Equal Rights Foundation. The Tribe's brief in opposition was filed on January 16, 2012, and the petition was scheduled for conference on February 15, 2013. On February 19, 2013, the Court issued a CVSG, inviting the Solicitor General to file a brief expressing the views of the United States. In light of recent settlement agreements, the petitioners filed a letter with the Court on June 5, 2013.

PETITIONS FOR WRIT OF CERTIORARI DENIED/DISMISSED:

Onondaga Nation v. New York (No. 12-1279) - On October 15, 2013, the Court denied review of a petition filed by the Onondaga Nation which sought review of a decision by the U.S. Court of Appeals for the Second Circuit which held that its lands claims are "equitably barred" based on the Supreme Court's 2005 decision in City of Sherrill as inherently disruptive of the settled expectations of the non-Indian landowners.

Matheson v. State of Washington (No. 13-135) - On October 7, 2013 the Court denied review of a petition filed by a tribal member who is a licensed Washington cigarette wholesaler who sought review of a decision by the Court of Appeals of the State of Washington which held that even though she is correct that the state cannot tax interstate or on-reservation shipments: (1) she failed to demonstrate that the cigarettes were shipped to another tribal member or out-of-state; (2) by virtue of her voluntarily obtaining Washington cigarette wholesaler license, she has the requisite contacts with the state to qualify as a taxpayer; and (3) contrary to the wholesaler's assertion, Indians who conduct business off-reservation are subject to generally applicable state law.

James L. v Devin H. (No. 13-49) - On October 7, 2013, the Court denied review of a petition filed by James L., an enrolled member of the Choctaw Nation, who sought review of a decision of the Court of Appeals Fifth District of Texas which held that the child custody dispute and proceeding did not qualify as a "foster care placement," and thus does not trigger the provisions of the Indian Child Welfare Act (ICWA).

Tonasket v. Sargeant (No. 12-1410) - On October 7, 2013, the Court denied review of a petition filed by a tribal member who is a smoke shop retailer who sought review of a decision by the U.S. Court of Appeals for the Ninth Circuit which held: (1) the Colville Confederated Tribes did not implicitly waive its sovereign immunity by agreeing to dispute resolution procedures when it entered into a cigarette tax compact with the State of Washington; and (2) federal antitrust law did not explicitly abrogate tribal immunity, and the Sherman Antitrust Act was not a law of general applicability vis-à-vis the tribe.

Nebraska v. Elise M. (No. 12-1278) - On October 7, 2013, the Court denied review of a petition filed by the State of Nebraska (through the Lancaster County Attorney's Office) which sought review of a decision by the Nebraska Supreme Court which held that, under ICWA, a state court must treat foster care placement and termination of parental rights as separate proceedings for purposes of determining whether an Indian child case pending in state court has reached an "advanced stage" at the time a motion is made to transfer the case to tribal court. The court also clarified an earlier opinion and concluded that the best interest of the child is not a consideration for the threshold determination of whether there is "good cause" to not transfer jurisdiction to a tribal court.

Native Village of Eyak v. Blank (No. 12-668) - On October 7, 2013, the Court denied review of a petition filed by the Native Village of Eyak which sought review of an en banc decision of the U.S. Court of Appeals for the Ninth Circuit which held that the Native Villages of Eyak, Tatitlek, Chenega, Nanwalek, and Port Graham do not possess aboriginal hunting and fishing rights in the areas of the Outer Continental Shelf they traditionally used.

You can find copies of briefs and opinions on the major cases we track on the Tribal Supreme Court Project website.

Articles and Materials:

What is the Tribal Supreme Court Project?

Update Memoranda of Cases

Online Archive of Court Documents

Glossary of Terms

We Stand United Before the Court -- by Tracy Labin, 37 New Eng. L. Rev. 695 (2002)

Supreme Court News Bulletins (National Indian Law Library)


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