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Indian Law Bulletins  |  U.S. Supreme Court  | 2003-2004 Term

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Two"Indian law-related" cases have been decided by the Supreme Court in the 2003-2004 term.

United States v. Lara
541 U.S. 193
Docket No. 03-107
Briefs & Pleadings

Subjects: Drunkenness (Criminal law); Assault and battery -- On Indian reservations; Police; Jurisdiction -- Criminal actions arising in Indian Country (U.S.); Indians of North America -– Non-members of a tribe; Jurisdiction -- Spirit Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux Tribe); Jurisdiction -- United States; Double jeopardy -- United States.

*Issues: Does Section 1301, as amended, validly restore tribes' sovereign power to prosecute members of other tribes (rather than delegating federal prosecutorial power to tribes), such that federal prosecution following tribal prosecution for offense with same elements is valid under Fifth Amendment's double jeopardy clause?

Holdings: (from Westlaw) The Supreme Court, Justice Breyer, held that:
(1) source of tribe's power to prosecute and punish defendant for violence to a policeman was inherent tribal sovereignty rather than delegated federal authority;
(2) Congress possessed constitutional power to lift or relax restrictions on Indian tribes' criminal jurisdiction over nonmember Indians that political branches of government had previously imposed; and
(3) the Double Jeopardy Clause could not bar federal prosecution of defendant for assaulting a federal officer after Indian tribe's prosecution and punishment of him for violence to a policeman, absent any showing that the source of the tribal prosecution was federal power.
Reversed.

History: Petition for certiorari was filed on 7/22/2003. Petition granted on 9/30/03. Argued 1/21/04. Decided 4/19/04.

*Holding below: US v. Lara, 324 F.3d 635, 8th cir. Distinction between powers that Indian tribe derives from its retained sovereignty and powers delegated to tribe by Congress is of constitutional magnitude and thus is matter ultimately entrusted to Supreme Court, and not Congress; accordingly, 1990 amendments to Indian Civil Rights Act, 25 U.S.C. § 1301, are ineffective insofar as they attempted to overturn Duro v. Reina, 495 U.S. 676 (1990), which held that tribe's retained or inherent sovereignty does not provide it with criminal jurisdiction over nonmember Indians; tribal authority to prosecute Indian who is not member of tribe derives from power delegated by Congress rather than from tribe's retained sovereignty, and thus federal prosecution of Indian for offenses for which he had previously been prosecuted by tribe of which he was not member is barred by double jeopardy clause, because authority for both prosecutions is derived from same sovereign source.

Supreme Court pleadings and briefs: Tribal Supreme Court Project, Oral argument transcripts

Native American Rights Fund Tribal Supreme Court Project: Various court documents

Related News Stories: Supreme Court to Rule on Tribal-federal Prosecution (Indianz.com) 10/1, Indians Fighting Double Jeapordy (Helena Independent Record) 10/3; Duro rides again Supreme Court review will test extent of tribal sovereignty, Part One (Indianz.com) 12/2/03; Defense Counselor Reichert Discusses U.S. v. Lara (Indian Country Today) * 12/19; Tribal Prosecutions: the Jurisdictional Void (Medill News Service) 12/03; Supreme Court Hears Arguments over Tribal Prosecutions (Bismarck Tribune) 01/21; Supreme Court allows federal prosecution after tribal conviction (AP) 4/19, Supreme Court Affirms Tribal Powers over All Indians (Indianz.com) 04/20

South Florida Water Management District v. Miccosukee Tribe of Indians, et al
541 U.S. 95
Docket No. 02-626
Briefs & Pleadings

Subjects: Environmental regulation; Water rights -- Water quality.

*Issues: (1) Does pumping of water by state water management agency that adds nothing to water being pumped constitute "addition" of pollutant "from" point source triggering need for NPDES permit under Clean Water Act? (2) Should court below have deferred to consistent and long-held federal and state agency position that petitioner's pumping does not constitute "addition" that requires NPDES permit?

Holdings: (from Westlaw) The Supreme Court, Justice O'Connor, held that:
(1) “discharge of a pollutant,” for which a National Pollutant Discharge Elimination System (NPDES) permit is required under the Clean Water Act, includes point sources that do not themselves generate pollutants, and
(2) triable issues existed regarding whether canal and wetland areas were meaningfully distinct water bodies.
Vacated and remanded.

History: Petition for certiorari was filed on 10/21/02.Petition granted on 7/27/03. Argued 1/14/04. Decided 3/23/04.

*Holding below: Miccosukee Tribe v. So. Florida, Eleventh Cir., 280 F.3d 1364. South Florida Water Management District's operation, in interest of flood prevention, of pump station, which pumps water collected by canal--runoff from water basin and seepage through levees--into water conservation area, is cause-in-fact of addition of pollutants to water conservation area, because polluted waters from canal would not normally flow into water conservation area, and thus, release of water caused by pump station's operation constitutes addition of pollutants from point source, for which National Pollutant Discharge Elimination System permit under Clean Water Act is required.

Supreme Court pleadings and briefs: Tribal Supreme Court Project, Oral Argument transcripts

Related News Stories: Western officials await 'Glades water decision (South Florida Sun-Sentinel) 2/7/03, Scalia Sides with Tribe but View Carries No Weight (Indianz.com) 03/24, High Court Ruling in Everglades Case Pleases Both Sides (Palm Beach Post) 03/24

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Petition for Certiorari has been granted in three pending Indian law cases this term.

City of Sherrill, New York v. Oneida Nation of New York
Docket No. 03-855
Briefs
Oral Argument Transcripts

Subjects: Real property -- Oneida Nation of New York; Indian Country (U.S.); Tax exemption; Local taxation -- New York.

*Issues: (1) Is alleged reservation land Indian country pursuant to 18 U.S.C. § 1151 and this court's decision in Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520, 66 U.S.L.W. 4145 (1998), when land was neither set aside by federal government nor superintended by federal government? (2) Was alleged reservation land set aside by federal government for purposes of Indian country analysis under 18 U.S.C. § 1151 and Venetie when alleged reservation was established by state of New York in 1788 Treaty of Fort Schuyler, and not by any federal treaty, action, or enactment? (3) Did 1838 Treaty of Buffalo Creek, which required New York Oneidas to permanently abandon their lands in New York, result in disestablishment of Oneida's alleged New York reservation? (4) May alleged reservation (i) remain Indian country or (ii) be subject to protections of Non-Intercourse Act, 25 U.S.C. § 177, if tribe claiming reservation status and Non-Intercourse Act protection ceases to exist?

History: Petition for certiorari was filed on 12/11/2003. Petition granted 6/28/04.

Holding below: Oneida Indian Nation of New York v. City of Sherrill, Second Cir. 337 F3d. 139, District court's determination that properties reacquired by Oneida Indian Nation of New York are in Indian country and therefore are not subject to taxation by New York state and its municipalities, absent explicit congressional authorization, is affirmed, notwithstanding city's contention that although properties were part of Oneidas' aboriginal land and tribe's reservation as recognized by Treaty of Canandaigua, they are subject to taxation because they are no longer within Indian country and Oneidas no longer exist as tribe; properties in city of Sherrill, N.Y., including gasoline station, convenience store, and textile manufacturing and distribution facility, are located on Oneidas' historical reservation land set aside for tribe under Treaty Canandaigua and therefore satisfy conditions of 18 U.S.C. § 1151, which defines Indian country to include "all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state"; Buffalo Creek Treaty includes no text that provides "substantial and compelling" evidence of Congress's intention to diminish or disestablish Oneidas' New York reservation, and therefore cannot be read to effect formal disestablishment of such reservation; city's contention that disputed issues of fact exist as to whether Oneidas have maintained tribal existence so as to be entitled to claim properties as reservation land is unavailing, appeals court having found no requirement in law that federally recognized tribe must demonstrate its continuous existence in order to assert claim to its reservation land.

Related News Stories: Oneida Indian Nation responds to the City of Sherrill's U.S. Supreme Court petition. (Oneida Dispatch) 01/29; High Court Wants Government's Perspective on Oneida Tax Feud (Newsday.com) 02/23. Word from Supreme Court Expected Monday (Oneida Dispatch) 02/21

Cherokee Nation of Oklahoma v. Thompson
Docket No. 02-1472
Briefs
Oral Argument Transcripts

Subjects: United States. Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.); Contracts; Cost; Self-determination.

*Issues: (1) Can federal government repudiate, without liability, express contractual commitments for which it has received valuable consideration, either by spending down discretionary agency appropriations otherwise available to pay its contracts, or simply by changing law and contracts retroactively? (2) Do government contract payment rights that are contingent on "the availability of appropriations" vest when agency receives lump-sum appropriation that is legally available to pay contracts--as is law of Federal Circuit under Blackhawk Heating & Plumbing Co. v. United States, 622 F.3d 539 (Ct. Cl. 1980)--or is government's liability calculated only at end of year after agency has spent its appropriations on other activities, as Tenth Circuit ruled below?

History: Petition for certiorari was filed on 4/03/03. Petition granted 3/22/04.

*Holding below: Cherokee Nation v. Thompson, 10th Cir., 11/26/02, 311 F.3d 1054. Provision of Indian Self-Determination and Education Assistance Act stating that "[n]otwithstanding any other provision in this subchapter, the provision of funds under this subchapter is subject to the availability of appropriations and the Secretary [of Health and Human Services] is not required to reduce funding for programs, projects, or activities serving a tribe to make funds available to another tribe," 25 U.S.C. § 450j-1(b), clearly expresses Congress's intent that provisions that obligate secretary to provide funding for various self-determination contracts or compacts, to operate programs previously operated by federal government, in amount equal to what would have been provided if HHS had continued to provide, in this case, health care services itself, as well as contract support costs (i.e., indirect costs incurred by tribe in carrying out self-determination contract), do not create entitlement on tribes' part--independent of appropriations to cover such amounts--to recover complete contract support costs incurred in connection with health care services, and thus federal government is not liable to tribes for contract support costs they incurred in administering expanded health programs after money had already been disbursed for years in question and no other appropriations were available.

Related News Stories: Supreme Court to Resolve Self-determination Dispute (Indianz.com) 03/23

Thompson v. Cherokee Nation of Oklahoma
Docket No. 03-853
Briefs

Subjects: Cherokee Nation of Oklahoma; United States. Dept. of Health and Human Services; Breach of contract -- United States; United States. Indian Self-Determination and Education Assistance Act (25 U.S.C. 450 et seq.); Overhead costs; Self-determination.

*Issues: 1) Does ISDEAA require secretary of health and human services to pay contract support costs associated with carrying out self-determination contracts with Indian Health Service, when appropriations were otherwise insufficient to fully fund those costs and would require reprogramming funds needed for noncontractable, inherently federal functions such as having Indian Health Service? (2) Does Section 314 of 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act bar respondent from recovering its contract support costs?

History: Petition for certiorari was filed on 12/11/2003. Petition granted 3/22/04.

Holding below:Thompson v. Cherokee Nation of Oklahoma, Federal Cir., 2003 WL 21511710. Availability clause of Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450j-1(b), which provides that "[n]otwithstanding any other provision in this subchapter, the provision of funds under this subchapter is subject to the availability of appropriations," does not excuse failure by secretary of health and human services to pay full contract support costs incurred by Indian tribe in administering federal programs under contract with secretary, when there were no statutory caps on funding in appropriations acts for relevant fiscal years, and when secretary has not shown that full payment of contract support costs would breach statutory ban against reduction in "funding for programs, projects, or activities serving [another] tribe" in order to make such payments; in meeting contractual obligations, secretary lacks discretion, in absence of statutory cap, to refuse to reprogram funds within lump-sum appropriation for purposes other than those contemplated at time of appropriation; funds are "available" within meaning of Section 450j-1(b) when secretary has authority to reprogram and funds are available within lump-sum appropriation; Section 314 of 1999 Omnibus Consolidated and Emergency Supplemental Appropriations Act, which provides that "[n]otwithstanding any other provision of law, amounts appropriated to or earmarked in committee reports ... for payments to tribes ... for contract support costs ... are the total amounts for fiscal years 1994 through 1998 for such purposes," does not defeat tribal right to contract support costs for 1994, 1995, and 1996 fiscal years that vested long before passage of 1999 appropriations act; ISDEAA makes it clear that funds devoted by secretary to "inherently federal functions" are not unavailable for contract support costs, and thus secretary was obligated to reprogram such funds in order to pay contract support costs.

Related News Stories: Supreme Court to resolve self-determination dispute (Indianz.com) 3/23/04.

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Petition for certiorari is pending in three Indian law cases this term.

Michael Minnis & Associates, P.C. v. Kaw Nation
Docket No. 03-1714
Briefs & Pleadings

Subjects: Kaw Nation, Oklahoma; Lawyers -- Fees; Sovereign immunity -- Kaw Nation, Oklahoma.

*Issues: (1) Under C&L Enterprises v. Citizen Band Potawatomi Indian Tribe of Okla., 532 U.S. 411, 69 U.S.L.W. 4290 (2001), can tribal chairman assert sovereign immunity as defense to suit against tribe based on contract approved by governing body of tribe when: (a) chairman is not party to contract or to suit; (b) majority of governing body of tribe has admitted that sums sought are due and owing under contract and has waived sovereign immunity; and (c) tribal vice chairman, consistent with resolution adopted by majority of governing body of tribe, confesses judgment in open court consistent with state statutes? (2) Does state appellate court have authority to decide internal tribal affairs contrary to determinations by secretary of interior: (a) by recognizing tribal chairman as being empowered to represent tribe when secretary has determined he has no such authority; (b) by recognizing persons as valid tribal judges and their orders and opinions as valid when secretary has determined that they are not properly seated as tribal judges, that their orders and opinions are not valid, and that tribal court no longer exists; and (c) by refusing to recognize actions by governing majority recognized by secretary? (3) Consistent with federal constitutional due process, can state court of appeals, without briefs or argument, affirm order granting motion to dismiss filed by nonparty after reversing basis for dismissal and converting motion to summary judgment when plaintiff has not been given fair opportunity to litigate: (a) issue of sovereign immunity; and (b) issue of nonparty's standing?

History: Petition for certiorari was filed on 6/25/2004.

*Holding below: Michael Minnis & Associates, P.C. v. Kaw Nation, 90 P.3d 1009, Law firm's contract with Indian tribe included express stipulation to jurisdiction of tribal courts, uncontroverted evidence established tribal chairman's express authorization by tribal general council to defend tribe against law firm's contract action, as well as invalidity of attempts, by putative majority of tribal executive council, to waive tribal sovereign immunity, to consent to state court jurisdiction, to confess judgment on law firm's contract claim, and to dismantle tribal judicial system, and thus law firm's state court contract action is barred by tribal sovereign immunity.

Artichoke Joe's v. Norton
Docket No. 03-1602
Briefs & Pleadings

Subjects: Indian gaming -- Class III; Gambling on Indian reservations; Constitutional amendments -- California; Equality before the law; United States. Constitution. 5th Amendment. United States. Constitution. 14th Amendment; Charities; United States. Indian Gaming Regulatory Act; Intergovernmental agreements -- Indian Country (California); California; Tribes -- Indian Country (California).

*Issues: (1) Does IGRA allow state to permit only tribes to engage in Class III gaming (casino gambling, including slot machines)? (2) If IGRA allows such monopoly, does that statute, as well as Proposition IA, which amended California Constitution to give tribes exclusive right to operate Class III gaming, and California's 62 compacts with tribes giving them monopoly rights to conduct Class III gaming, violate equal protection principles? (3) More generally, can Congress, consistent with equal protection principles, authorize state to award major segment of its economy solely to Indian tribes, while excluding others from participating in that economic arena, even on non-Indian lands?

History: Petition for certiorari was filed on 5/27/2004.

*Holding below: Artichoke Joe's California Grand Casino V. Norton, 353 F.3d 712, Neither California constitutional amendment that permits operation of casino-type gambling facilities exclusively by Indian tribes and only on Indian lands, nor state-tribal compacts implementing such right, violate Indian Gaming Regulatory Act or infringe Fifth or 14th Amendment equal protection rights of non-Indians, who are prohibited by California law from operating similar facilities.

Steffler v. Cow Creek Band of Umpqua Tribe of Indians
Docket No. 03-10440
Briefs & Pleadings

Subjects: Cow Creek Band of Umpqua Indians of Oregon; Jurisdiction -- Cow Creek Band of Umpqua Indians of Oregon; Detention of persons -- Oregon.

*Issues: not yet available

History: Petition for certiorari was filed on 5/11/2004.

Holding below: Steffler V. Cow Creek Band of Umpqua Tribe of Indian, 2004 WL 830080,(from the court opinion) A person must be detained in some way by tribal authority to invoke subject matter jurisdiction under 25 U.S.C. § 1303. Moore v. Nelson, 270 F.3d 789, 790 (9th Cir.2001). Because Steffler was detained only by Oregon state authorities, and because the record does not reveal that the tribe acted in any way to cause the detention, we conclude that the district court did not err in dismissing Steffler's petition for lack of jurisdiction.

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Petition for certiorari has been denied in twenty-five Indian law cases so far this term.

Gallegos v. Jicarilla Apache Nation
Docket No. 03-1479
Petition for a Writ of Certiorari
Briefs & Pleadings

Subjects: Indian reservation police -- Dismissal of -- Jicarilla Apache Nation of the Jicarilla Apache Indian Reservation, New Mexico; United States. Indian Civil Rights Act.

*Issues: (1) Is tribal forum inaccessible under second prong of Dry Creek Lodge exception when fired non-Indian tribal police officer is deprived of his right to call witnesses on his behalf and present his own testimony at tribal administrative hearing guaranteed under tribal law and regulation? (2) Does dispute over firing of non-Indian tribal officer constitute matter of "internal tribal affairs" under third prong of Dry Creek Lodge when it promotes, rather than discourages, continuation of corruption within tribe's police department? (3) Can tribe accuse non-Indian employee of criminal behavior constituting federal felonies and fire him when it could not maintain jurisdiction to prosecute him in its own tribal forums for those same alleged crimes under holding of Oliphant v. Suquamish Indian Tribe, 435 U.S. 19

History: Petition for certiorari was filed on 4/26/2004. Petition was denied on 6/28/04.

*Holding below: Gallegos V. Jicarilla Apache Nation, 2003 WL 22854632, Indian tribe's sovereign immunity precludes federal courts from exercising jurisdiction over Indian Civil Rights Act claims against it for declaratory relief or money damages, and thus ICRA claims by non-Indian who was formerly employed by tribal police department as patrol sergeant and who alleges that he was wrongfully discharged in retaliation for having uncovered evidence of possible criminal activities within that department was properly dismissed by district court for lack of subject matter jurisdiction; former sergeant's contention that jurisdiction is proper because he falls within limited exception to tribal sovereign immunity announced in Dry Creek Lodge Inc. v. Arapahoe & Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), is without merit, because, to qualify for such exception, plaintiff must demonstrate that dispute involves non-Indian party, that tribal forum is not available, and that dispute involves issue falling outside internal tribal affairs, and, although employee is non-Indian, he had access to tribal administrative body and availed himself of that forum, and claims of wrongful termination of tribal employment are internal tribal affairs.

Davis v. United States
Docket No. 03-1313

Subjects: Seminole Nation of Oklahoma; United States; Certificate of degree of Indian blood; Tribes -- Membership; Heredity; Africa; United States. Bureau of Indian Affairs.

*Issues: (1) In making Fed.R.Civ.P. 19 determination of "indispensability" of absent party, may court avoid deciding whether absent party's claimed interest is "frivolous" or "legally protected" by asserting that such would be determination of merits of dispute? (2) Under Rule 19, when purported interest of absent tribe--to discriminate against its black members--has been divested (i) by treaty that granted equal rights of such black citizens to common tribal property, and (ii) by federal statute that awarded funds to Seminole Nation of Oklahoma for "common tribal need," and directed Bureau of Indian Affairs in approving plans for use of funds to be sure to protect rights of minority members of tribes who are granted such federal funds, is that "interest" legally protected one?

History: Petition for certiorari was filed on 3/15/2004. Petition was denied on 6/28/04.

Holding below:Davis ex rel. Davis v. U.S., 343 F.3d 1282, District court's dismissal of suit by two bands of Native American tribe--Seminole Nation of Oklahoma--alleging that because of their African ancestry they have been systematically denied benefits routinely given to other members of tribe and that government improperly refused to issue Certificates of Degree of Indian Blood to members of plaintiff bands, is affirmed, district court having properly determined that (i) plaintiffs failed to join indispensable party--tribe itself--with respect to claim that plaintiffs were wrongfully excluded from participation in some of tribal assistance programs, and (ii) court lacked jurisdiction to hear CDIB claim because plaintiffs failed to show that they had exhausted administrative remedies.

Ponca Tribe of Nebraska v. Superior Court of California, Riverside County
Docket No. 03-1374

Subjects: Intertribal Strategic Ventures; Ponca Tribe of Indians of Oklahoma; Sovereign immunity -- Ponca Tribe of Indians of Oklahoma; Business -- Off Indian reservations -- Ponca Tribe of Indians of Oklahoma; Disclosure in accounting.

*Issues: (1) Can state regulatory agency enforce administrative subpoena directed to financial institution seeking financial records of Indian tribe and tribal entity formed pursuant to authority of that tribe? (2) Does tribal sovereign immunity doctrine arising from Indian commerce clause, treaty clause, and supremacy clause permit state, through subpoena, to compel Native American tribe and tribal entity to allow disclosure of financial records maintained by bank or other depository institution? (3) Is tribal sovereign immunity doctrine arising from Indian commerce clause, treaty clause, and supremacy clause waived or otherwise not recognized when tribe or tribal entity does business off-reservation or with non-Indians? (4) Is tribal sovereign immunity doctrine arising from Indian commerce clause, treaty clause, and supremacy clause waived or otherwise not recognized when tribal financial records are maintained by bank or other depository institution?

History: Petition for certiorari was filed on 3/30/2004. Petition was denied 6/1/04.

Holding below:(opinion not found as of 4/6/04) Court denies petition for writ of mandate/prohibition seeking (i) order directing lower court to strike its denial of motion, made by entity formed pursuant to authority of participating Native American tribes, to quash administrative subpoena directed to bank seeking entity's financial records, and (ii) new order granting such motion.

South Dakota Dept. Revenue v. Pourrier
Docket No. 03-1401

Subjects: Motor fuels -- Taxation -- South Dakota; Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; South Dakota. Dept. of Revenue; Muddy Creek Oil and Gas; Tax refunds -- South Dakota.

*Issues: (1) Does Hayden-Cartwright Act, which expressly authorizes state taxation of sale of motor fuel when sales are made by "licensed traders" on "reservations," authorize South Dakota to impose its motor fuel tax upon sales of motor fuels within boundaries of Pine Ridge Indian Reservation? (2) Can corporation formed under laws of South Dakota, as matter of federal law, qualify as member of Indian tribe for reason that its sole stockholder is member of tribe?

History: Petition for certiorari was filed on 4/05/2004. Petition was denied on 5/24/04.

Holding below:First ruling below: Pourier v. South Dakota Dept. of Revenue, 658 N.W.2d 395,
Language in 1936 Hayden-Cartwright Act granting states authority to impose taxes on "sales, purchases, storage, or use of gasoline" by "filling stations" or "licensed traders" located on U.S. military or "other reservations," 4 U.S.C. § 104, does not manifest congressional intent to allow states to tax Indian proprietors selling gasoline on Indian reservations; corporation owned by Indian tribe or by enrolled tribal member residing on Indian reservation and doing business on reservation for benefit of reservation Indians is enrolled member for purposes of protecting tax immunity, and thus oil and gas company having sole shareholder and president who is enrolled member of Oglala Sioux Tribe and resident of Pine Ridge Indian Reservation in South Dakota is entitled to seek motor fuel tax refund.
Second ruling below:Pourrier v. South Dakota of Revenue, S.D., 674 N.W.2d 314, Limitations period applicable to refunds, sought in this case, of motor fuel tax that was illegally collected is 15 months under S.D. Codified Laws § 10-47B-141, and any claims for times predating Dec. 17, 1997, are untimely.

Related News Stories: U.S. Supreme Court Won't Touch Indian Tax Ruling (Indianz.com) 05/26

Penn v. Bodin
Docket No. 03-829

Subjects: Indians of North America -- Non-members of a tribe; United States. Federal Tort Claims Act; Civil rights; Tort liability of Indian tribal governments; Indians of North America -- Tribal membership -- Exclusion and expulsion; Executions (Law); Sovereign immunity -- United States; Sovereign immunity -- North Dakota; United States -- Officials and employees; North Dakota -- Officials and employees.

*Issues: (1) Do BIA officer and county sheriff enjoy absolute immunity when enforcing ex parte tribal court order banishing non-Indian from her home on fee land, all other fee lands, and public highways within reservation? (2) Are BIA officer and county sheriff entitled to absolute immunity when enforcing tribal court banishment order against non-Indian when officers threaten arrest, since BIA officer had no authority to arrest non-Indian, county sheriff had no authority to enforce tribal court order, and federal statutory authority for enforcement of tribal court orders provides that such enforcement by BIA officer is "subject to federal law" and enforcement violates federal law?

History: Petition for certiorari was filed on 12/05/2003. Petition denied 4/19/04.

Holding below: Penn v. United States, Eigth Cir., 2003 WL 21543782,Tribal judge who issued temporary restraining order excluding non-Indian from tribe's reservation for 30 days without hearing and relying solely on uncorroborated, unsworn petition is absolutely immune, to same extent as state and federal court judges, from suit seeking damages for his actions; Bureau of Indian Affairs officer and local county sheriff are protected by absolute quasi-judicial immunity from suit seeking damages for their enforcement of order, which was facially valid.


 Hoots v. K.B.
Docket No. 03-784

Subjects: Jurisdiction -- Deference to tribal courts; Parent and child (Law); Trials (Custody of children) -- North Dakota; United States. Indian Child Welfare Act of 1978 (25 U.S.C. 1901); Equality before the law - United States; Due process of law -- United States.

*Issues:(1) Is AB, citizen of United States and North Dakota, and Indian child as that phrase is defined under ICWA, entitled to protections of U.S. and North Dakota Constitutions and thus entitled to due process and equal protection afforded other children under relevant federal and state laws concerning protection of children, and is review of application of ICWA to individual Indian child subject to strict scrutiny under both equal protection and substantive due process analyses, so that means employed must be narrowly tailored to meet compelling governmental interest especially when matter involved government action vis a vis individual child rather than government action vis a vis tribe? (2) Should existing Indian family doctrine be applied here to prevent unconstitutional application of ICWA to facts of this case? (3) Under fair application of ICWA to facts of this case should tribe's motion to transfer jurisdiction have been denied because (a) mother's prior veto of tribe's initial motion to transfer jurisdiction barred subsequent motion to transfer jurisdiction, (b) motion was untimely, (c) tribal court is inconvenient forum, and/or (d) best interests of child should have been considered by state courts? (4) Did Congress exceed its authority under Indian commerce clause and violate 10th Amendment in enacting ICWA?

History: Petition for certiorari was filed on 11/17/2003. Petition denied 4/5/04.

Holding below: In Re A. B. Supreme Court of ND, 2003 ND 98. Different treatment of Indians and non-Indians under Indian Child Welfare Act, which gives tribal courts concurrent but presumptive jurisdiction of child custody proceeding involving Indian child not domiciled or residing within reservation of child's tribe, 25 U.S.C. § 1911(b), is rationally related to protection of integrity of Native American families and tribes and to fulfillment of Congress's unique guardianship obligation toward Indians, and thus transfer of state parental termination proceeding to tribal court on tribe's motion did not deny right to equal protection or substantive due process of Indian child who lived off reservation in non-Indian foster home; Indian family exception to ICWA, under which some courts have refused to apply ICWA when Indian child is not being removed from existing Indian family with significant connection to Indian community, is contrary to plain language of ICWA, would thwart statute's protection of tribe's interest in its Indian children, and was effectively undermined in Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989); tribe's motion to transfer jurisdiction filed seven weeks after filing of parental termination proceeding was timely; tribal court offered to sit in Fargo where child resided, and thus was not inconvenient forum; best interest of child is not consideration for threshold determination of whether there is good cause not to transfer jurisdiction to tribal court under ICWA; transfer is affirmed.

Citizens for Safer Communities v. Norton
Docket No. 03-1156

Subjects: Roseville (Calif.); United States. Dept. of the Interior; Trust or restricted lands; Casinos; Gambling on Indian reservations -- California; Indian gaming -- California; United Auburn Indian Community of the Auburn Rancheria of California; United States. Indian Gaming Regulatory Act; Auburn Indian Restoration Act.

*Issues: Did court of appeals and secretary of interior correctly decide that secretary's acceptance of 50-acre parcel of land in Placer County, Calif., for United Auburn Indian Community's establishment of 200,000-square-foot casino, which parcel is adjacent to growing residential communities and within short distance of residences and schools, with which United Auburn Indian Community had no previous historical, cultural, temporal, or other connection or ownership and which was remote and separate from former Auburn Rancheria, constituted "restoration of lands" to United Auburn Indian Community under 25 U.S.C. § 2719(b)(1)(B)(iii) such that secretary could forgo statutory determination that using parcel for gaming would not be detrimental to surrounding community?

History: Petition for certiorari was filed on 2/11/2004. Petition denied 4/5/04.

Holding below:City of Roseville V. Norton348 F.3d 1020, Secretary of interior's approval of Auburn Indian Tribe's application for creation of 49.21-acre reservation for use as casino on land identified for possible reservation use in Auburn Indian Restoration Act, which restored Auburn Indian Band to federal recognition as tribe and authorized creation of new reservation on its behalf, qualified as "restoration of lands for an Indian tribe that is restored to federal recognition" under Indian Gaming Regulatory Act, even though new reservation was 40 miles from tribe's former reservation and would be put to different use than former reservation, and thus secretary's action was exempt from IGRA's requirement that secretary of interior, prior to deciding that certain Indian land may be used for gaming, must find that gaming would not be detrimental to surrounding communities and must secure consent of state's governor.

Rosales v. United States
Docket No. 03-895

Subjects: Parties to actions; Indispensables; Jamul Indian Village of California -- Claims; Sovereignty; Federally recognized Indian tribes; Indian allotments; Remedies (Law); Land tenure.

*Issues: (1) Is federally recognized Indian tribe necessary and indispensable party to action by individual Indians to enforce their allotments of non-tribal land pursuant to 25 U.S.C. § 345? (2) Can individual Indians be deprived of all rights and remedies provided by 25 U.S.C. § 345, when subsequently recognized Indian tribe falsely claims sovereignty over non-tribal land allotted to individual Indians?

History: Petition for certiorari was filed on 12/18/2003. Petition denied 3/22/04.

Holding below:Rosales v. United States, 9th cir., 73 Fed. Appx. 913. Indian tribe that has claimed jurisdiction over parcel of land at issue in this action since at least 1981, and whose interest therein would be impaired if certain litigants were declared to be beneficial owners of that land, is necessary and indispensable party that enjoys sovereign immunity from suit, whose interests cannot adequately be represented by United States in this intertribal dispute, and whose absence requires dismissal of action.

Davis v. Jones
Docket No. 03-941

Subjects: Indian children -- United States; State courts -- Michigan; Jurisdiction -- Michigan; Tribal courts -- Jurisdiction; Parent and child (Law); Trials (Custody of children) -- Michigan; Child welfare; United States. Indian Child Welfare Act of 1978; Procedure (Law).

*Issues: (1) When no finding was made that custody with Indian mother would likely cause serious physical or emotional damage to child and, to contrary, state court granted Indian mother liberal and unsupervised parenting time, did state court exceed its jurisdiction and violate ICWA by (a) failing to immediately restore full physical and legal custody of Indian child to Indian mother when, prior to and during trial, Indian mother expressed her desire to terminate voluntarily created limited guardianship and regain full physical and legal custody of Indian child, as was Indian mother's statutory right, 25 U.S.C. § 1913(b); (b) acting without jurisdiction in violation of 25 U.S.C. § 1920 by conducting custody proceeding in which limited guardians retained custody of Indian child after Indian mother had expressed desire to regain her custodial rights; (c) failing to require limited guardians to notify Indian child's tribe of this foster care placement proceeding and of tribe's right to intervene under 25 U.S.C. § 1912(a), which omission created jurisdictional defect in all further proceedings; and (d) failing to require limited guardians to introduce qualified expert testimony to establish that active efforts had been made to avoid breakup of Indian family as required by Section 1912(d)? (2) Did state courts err in failing to accord natural mother's constitutional right to make reasonable decisions as to care and custody of her child appropriate weight and importance, as required by Troxel v. Granville, 530 U.S. 57, 68 U.S.L.W. 4458 (2000)?

History: Petition for certiorari was filed on 12/29/2003. Petition denied on 3/08/04.

Holding below:Davis v. Beveridge, Mich. App, Ct., 2003 WL 198011. Provision of Indian Child Welfare Act, 25 U.S.C. §1912(a), that requires notification of tribe when foster care placement of, or termination of parental rights to, Indian child is sought is inapplicable to action in which child's paternal grandparents, who already had temporary custody of child pursuant to child's parents' divorce decree, sought to modify decree in order to acquire full custody of child, and thus mother's contention that noncompliance with ICWA's notification provisions deprived court of jurisdiction to award custody of child to grandparents is meritless; trial court did not violate mother's constitutional rights by deciding it would be in child's best interest to award full custody to paternal grandparents, especially in light of evidence that mother had alcohol and drug abuse problem, including recent hospitalization for heroin overdose.

United States v. Santee Sioux Tribe of Nebraska
Docket No. 03-762

Subjects: Indian gaming -- Class II; Indian gaming -- Class III; Gambling on Indian reservations; Casinos -- Santee Sioux Tribe of the Santee Reservation of Nebraska; United States. Indian Gaming Regulatory Act; United States. Johnson Act (15 USC 1171-1178); Machinery -- Defined.

*Issues:Is Lucky Tab II machine excluded from Johnson Act's definition of "gambling device" in 15 U.S.C. § 1171(a)(2)(B) because player becomes entitled to receive money as result of sequence of winning and losing pull-tabs on pre-printed paper roll inserted into machine?

History: Petition for certiorari was filed on 11/21/2003. Petition denied 3/1/04.

Holding below: U.S. v. Santee Sioux Tribe of Nebraska, 324 F. 3d. 607, Eighth cir. Lucky Tab II machine, which dispenses, in identical order from roll as physically placed in machine, pull-tabs from that roll, does not generate random patterns with element of chance but is merely high-tech dispenser of pull-tabs that also displays contents of tickets on screen for user, and thus is not gambling device, "designed and manufactured primarily for use in connection with gambling, and ... by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property," that is prohibited within Indian country by Johnson Act, 15 U.S.C. § 1171(a)(2)(B).

Related news stories: Supreme Court Turns Down Gaming Machine Dispute (Indianz.com) 03/01

John D. Ascroft v. Seneca-Cayuga Tribe of Oklahoma, et al
Docket No. 03-740

Subjects: Indian gaming -- Class II; Gaming -- Equipment and supplies; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et Tribe of Oklahoma; Fort Sill Apache Tribe of Oklahoma; Northern Arapaho Tribe of Wyoming; Diamond Gaming Corporation; National Indian Gaming seq.); United States. Johnson Act (15 USC 1171-1178); Seneca-Cayuga Commission (U.S.).

*Issues: (1) Does IGRA create implied exemption from Johnson Act for certain gambling devices used at tribal gaming facilities in Indian country in absence of tribal-state gaming compact? (2) Can machine qualify as gambling device under Johnson Act when player becomes entitled to receive money as result of sequence of winning and losing pull-tabs on pre-printed paper roll inserted into machine?

History: Petition for certiorari was filed on 11/21/2003. Petition denied 3/1/04.

Holding below: Seneca Cayuga Tribe of Oklahoma v. National Indian Gaming Commission, U.S. Court of Appeals, Tenth cir., 327 F.3d 1019. Provision of Indian Gaming Regulatory Act classifying "the game of chance commonly known as bingo (whether or not electronic, computer or other technologic aids are used in connection therewith) ... including (if played in the same location) pull-tabs ... and other games similar to bingo" as Class II gaming permitted in Indian country shields Indian country users of IGRA Class II technologic aids from liability under earlier-enacted Johnson Act, which prohibits possession or use of "any gambling device" within Indian country, 15 U.S.C. § 1175(a); provision of IGRA stating that Johnson Act "shall not apply to any gaming conducted under a Tribal-State compact" entered into between "any Indian Tribe having jurisdiction over the Indian country upon which a Class III gaming activity is being conducted" and "a state in which gambling devices are illegal," 25 U.S.C. § 2710(d)(3), (6), may not be read, under canon of expressio unius est exclusio alterius, to preclude use of otherwise legal Class II devices in absence of tribal-state compact, particularly in view of legislative history evincing congressional intent that Johnson Act not preclude use of devices in aid of games similar to bingo that are allowed under IGRA; National Indian Gaming Commission regulation stating that "pull tab dispensers and/or readers" are included as IGRA Class II "electronic, computer, or other technologic aids," 25 C.F.R. § 502.7(a), is reasonable and entitled to deference; machine that dispenses paper pull-tabs from roll that is part of larger deal containing predetermined number of randomly distributed winning tabs, and that requires player to manually peel back top layer of pull-tab to confirm victory and to present tab for visual inspection to gaming hall clerk to become entitled to winnings, is technologic aid used in connection with playing of pull-tabs and thus Class II IGRA gaming device exempt from Johnson Act.

Related news stories: Appeals Court Says Game Is Legal Class II (Indianz.com) 4/21.

Coyote Valley Band of Pomo Indians v. California
Docket No. 03-804

Subjects: Intergovernmental agreements -- Coyote Valley Band of Pomo Indians of California; Intergovernmental agreements -- California; Indian gaming; United States. Indian Gaming Regulatory Act (IGRA) (25 U.S.C. 2701 et seq.); Special funds; Fund accounting; Revenue sharing.

*Issues: (1) Did Ninth Circuit err in holding, in acknowledged conflict with Second Circuit, that state that has legalized some forms of Class III gaming has no obligation to negotiate compacts with Indian tribes regarding other forms of such gaming? (2) To what extent, if any, may state require Indian tribe to sacrifice core elements of its sovereignty and to subject itself to state taxation and to state labor laws as prerequisite to state's agreement to enter into gaming compact under IGRA?

History: Petition for certiorari was filed on 12/01/2003. Petition denied 2/23/2004.

Holding below: Coyote Valley Band v. State of California, Ninth Cir., 331 F.3d 1094. State's obligation under Indian Gaming Regulatory Act to negotiate in good faith with Indian tribe with respect to Class III gaming if "such gaming" is permitted in state does not require state that has legalized some forms of Class III gaming to negotiate with tribe about other forms of Class III gaming that are prohibited in state; provisions of model gaming compact between California and Indian tribes that establish (i) revenue sharing trust through which gaming tribes must share gaming revenues with non-gaming tribes, (ii) special distribution fund through which gaming tribes must contribute gaming revenues to fund state gaming regulatory activities, and (iii) collective bargaining and other labor protections for workers at tribal gaming establishments do not impose upon tribe "tax, fee, charge, or other assessment" prohibited by Section 2710(d)(4) of IGRA but, instead, fall within scope of Section 2710(d)(3)(C)(vii), which authorizes compact provisions covering "subjects that are directly related to the operation of gaming activities"; accordingly, state did not act in bad faith by refusing to enter compact with tribe that did not include these provisions.

Related news stories: Supreme Court Won't Take on Calif. Compact Dispute (Indianz.com) 02/24

Turley v. Eddy
Docket No. 03-764

Subjects: Colorado River Indian Tribes of the Colorado River Indian Reservation, Arizona and California -- Officials and employees; Eviction; Joinder of parties.

*Issues: (1) When considering Indian tribal officials' sovereign immunity defense, must courts first determine scope of tribal sovereignty? (2) When Indian tribal officials assert sovereign immunity as defense to litigation challenging lawfulness of their actions asserting reservation jurisdiction over lands that are (a) outside of legislated boundaries of tribe's reservation and (b) precluded by statute from having reservation status, must courts first determine scope of tribal sovereignty? (3) Can courts apply "Indian lands exception" to Quiet Title Act, 28 U.S.C. § 2409a, without first determining that litigation involves "trust or restricted Indian lands"?

History: Petition for certiorari was filed on 11/24/2003. Petition denied 2/23/2004.

Holding below:Turley v. Eddy, U.S. Court of Appeals, Ninth cir., 2003 WL 21675511. District court properly dismissed complaint against individual officers of Indian tribe, alleging wrongful eviction from land in which tribe claims interest, for failure to join necessary and indispensable parties--tribe and United States--that are immune from suit.

Harold Frank and Forest County Potawatomi Community of Wisconsin v. Forest County, Wisconsin
Docket No. 03-577

Subjects: Apportionment (Election law); Equality before the law -- United States; United States. Voting Rights Act of 1965; Forest County (Wis.); Forest County Potawatomi Community of Wisconsin Potawatomi Indians, Wisconsin.

*Issues: (1) Does 10 percent rule of Brown v. Thomson apply to all jurisdictions, regardless of size? (2) Is presumptively unconstitutional reapportionment plan implicating fundamental right to vote subject only to "rational basis" level of judicial scrutiny? (3) Must voting age population, total population, or some other measure be used in analyzing Voting Rights Act claim, or is relevant population base political choice for redistricting body?

History: Petition for certiorari was filed on 10/13/2003. Petition was denied on 1/12/2004.

Holding below: Frank v. Forest County, U.S. Court of Appeals, seventh cir., 336 F.3d 570. Ten percent rule of Brown v. Thomson, 462 U.S. 835 (1983)--which held that population disparity of greater than 10 percent creates prima facie case of discrimination in electoral districting plan--is rebuttable, and more easily so when districts being reviewed are both numerous and in sparsely populated area whose residents are unevenly distributed; accordingly, although difference between largest of sparsely populated county's 21 supervisory districts, which has 514 residents, and smallest district, with 428 residents, is 18 percent, county's districting does not deny equal protection of law, especially in light of modest functions that state has assigned to board of supervisors of remote, rural county; contention of county's Indians, who have population majorities in two districts, that Voting Rights Act requires redistricting to create third district in which Indians, when combined with transient black residents of Job Corps center, would have majority is meritless in absence of evidence that, in supervisory elections, Indian and black voters would have same electoral preferences.

American Federation of Government Employees, AFL-CIO, et. al v. United States
Docket No. 03-359

Subjects: Equality before the law -- United States; Contracting out; Employee selection; United States -- Officials and employees; American Federation of Government Employees. United States. Defense Appropriations Act.

*Issues: (1) May preference for Native American contractors in Section 8014 of DOD Appropriations Act, which is neither restricted to Indian tribes nor related to uniquely Indian interests, nevertheless be upheld as tribal preference subject to rational basis review under Morton v. Mancari, 417 U.S. 535 (1971), on grounds that it could be applied to Indian tribes or members of Indian tribes? (2) Is preference for Native American contractors in Section 8014 of DOD Appropriations Act narrowly tailored to serve compelling interest and consistent with equal protection guarantee of Fifth Amendment?

History: Petition for certiorari was filed on 9/4/2003. Petition was denied on 12/15/03.

*Holding below: American Federation of Government Employees, AFL-CIO, et. al v. United States, District of Columbia Cir., 330 F.3d 513. Section 8014(3) of 2000 Defense Appropriations Act, which relieves Department of Defense of its general obligation to perform most efficient and cost-effective organization analysis--which is predicate to outsourcing work previously done by more than 10 government employees--when it contracts out work to qualified Native American firm, is rationally related to important federal interest in promoting economic development of federally recognized Indian tribes and thus does not violate affected federal employees' equal protection rights.

Related News Stories: Court Rejects Union Claim Against Native Contract (Indianz.com) 6/09. Supreme Court Rejects Appeal of Native Preference Case (Indianz.com) 12/16

Spotted Eagle v. Montana
Docket No. 03-6467

Subjects: Drunk driving; Montana; Judgments, Criminal; Tribal courts -- Blackfeet Tribe of the Blackfeet Indian Reservation of Montana.

*Issues: not yet available

History: Petition for certiorari was filed on 9/20/2003. Petition was denied 11/10/2003.

*Holding below: State v. Spotted Eagle, Supreme Court of Montana, 71 P.3d 1239. The Supreme Court, James C. Nelson, J., held that: (1) defendant's uncounselled tribal convictions for DUI were valid at inception, and (2) tribal convictions could be used to enhance state DUI charge to felony.

Related News Stories: Mont. Court Accepts Tribal Court Convictions (Indianz.com) 6/25 http://www.indianz.com/News/show.asp?ID=2003/06/25/mont

Pataki v. Saratoga County Chamber of Commerce Inc.
Docket No. 03-392

Subjects: St. Regis Band of Mohawk Indians of New York; Pataki, George E., 1945-; New York; Chamber of Commerce (Saratoga County, New York); Sovereign immunity -- Indian Country (New York); Intergovernmental agreements -- New York; Intergovernmental agreements -- St. Regis Band of Mohawk Indians of New York; Gambling on Indian reservations -- New York; Indian gaming.

*Issues:May court disregard tribal sovereign immunity in determining if Indian tribe is indispensable party to suit that is likely to significantly prejudice tribe's interests?

History: Petition for certiorari was filed on 8/19/2003.

*Holding below: Saratoga County Chamber of Commerce v. Pataki Court of Appeals of NY, 2003 WL 21357342 Although sovereign immunity prevents Indian tribe from being forced to participate in state court proceedings, it does not require everyone else to forgo resolution of all disputes that could affect tribe, and thus tribe is not indispensable party to action challenging, on state constitutional grounds, governor's authority to negotiate and sign agreement with tribe to permit casino gaming on its reservation.

Related News Stories: Supreme Court Refuses to Hear Indian Gambling Case (Newsday.com) 11/17; Okla. Chief Wants Land-claim Meeting with Pataki (Ithaca Journal) 11/19

Ysleta del Sur Pueblo v. Texas
Docket No. 03-461

Subjects: Ysleta Del Sur Pueblo of Texas; Texas; Indian gaming -- Texas -- Law and Legislation; Gambling on Indian reservations -- Texas; United States. Indian Gaming Regulatory Act; Sovereignty -- Indian Country (Texas).

*Issues:(1) Does Indian Gaming Regulatory Act, instead of Pueblo's Restoration Act, govern gaming activities on reservation lands of Ysleta del Sur Pueblo? (2) If not, should gaming provisions of Pueblo's Restoration Act be interpreted consistently with California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987)? (3) If not, can federal courts require Pueblo (a) to obtain license from Texas prior to conducting bingo in accordance with substantive provisions of Texas state law, and (b) to be "qualified organization" prior to conducting bona fide carnival contests when no such requirement exists for any other person? (4) Will Supreme Court exercise its supervisory power to prevent grave miscarriage of justice wrought by federal courts in derogation of this country's trust relationship with Pueblo?

History: Petition for certiorari was filed on 9/23/2003. Petition was denied on 11/3/03.

*Holding below: Texas v. Ysleta del Sur Pueblo, District Court, W.D. Texas, 220 F. Supp. 2d 668. District court did not abuse its discretion in refusing to modify its permanent injunction, barring Indian tribe from holding gambling activities on tribal lands, in order to permit tribe to participate in charitable bingo, carnival contests, and promotional player pool activities.

Alabama-Coushatta Tribe of Texas v. Texas
Docket No. 03-270

Subjects: Alabama-Coushatta Tribes of Texas; Texas; Indian gaming; Gambling on Indian reservations -- Alabama-Coushatta Tribes of Texas; Gambling -- Law and legislation -- Texas; United States. Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act.

*Issues:(1) Given disapproval by this court in 1998 of hypothetical jurisdiction, can Fifth Circuit now rely on dicta in 1994 Fifth Circuit decision--to effect that statutes restoring Ysleta Tribe to federal status, rather than Indian Gaming Regulatory Act, governed Ysleta Tribe's gaming activity and that federal courts had no jurisdiction to consider Ysleta Tribe's claims under those restoration statutes--to deny Alabama-Coushatta Tribe's requested declaration of its gaming rights? (2) Is remand appropriate when dicta in Ysleta del Sur Pueblo v. Texas, now being relied upon to deny Alabama-Coushatta right to gaming, was wrong?

History: Petition for certiorari was filed on 8/19/2003. Petition was denied on 10/6/03.

*Holding below: (Unreported decision from the 5th cir.) Trial court's ruling in favor of state, enjoining Alabama Coushatta Tribe of Texas from conducting gaming on its lands in accordance with Ysleta del Sur Pueblo and Alabama Coushatta Indian Tribes of Texas Restoration Act, is affirmed on basis of Ysleta del Sur Pueblo v. Texas, 36 F.3d 1325 (5th Cir. 1994), which construed Restoration Act provision stating that "[a]ll gaming activities which are prohibited by the laws of the State of Texas" are prohibited on tribal lands of Ysleta del Sur Pueblo--which is parallel to provision regarding Alabama Coushatta lands--to prohibit Ysleta del Sur Pueblo from engaging in any gaming activity prohibited by Texas law; contention that such interpretation in Ysleta del Sur Pueblo was dicta is meritless.

Kennedy v. Hughes
Docket No. 02-1853

Subjects: Pueblo of Santa Clara, New Mexico -- Officials and employees; Civil rights; United States. Indian Civil Rights Act (25 USC 70 et seq.); Searches and seizures -- Pueblo of Santa Clara, New Mexico; Property; Imprisonment -- Pueblo of Santa Clara, New Mexico.

*Issues:(1) Does Tenth Circuit decision set precedent that allows tribes to single-out and violate nonmembers' constitutional rights? (2) Did district court incorrectly interpret this court's rule regarding requirement to exhaust remedies?

History: Petition for certiorari was filed on 6/18/2003. Petition was denied on 10/6/03.

*Holding below: Kennedy v. Hughes, 60 Fed. Appx. 734, 10th Cir., Plaintiffs' claims having been resolved on merits by tribal court, plaintiffs do not satisfy test of Dry Creek Lodge Inc. v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1982), which recognized limited exception to holding of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), that there is no private cause of action under Indian Civil Rights Act except under ICRA's habeas corpus provision, and thus plaintiffs' claims alleging violation of their civil and constitutional rights as protected by ICRA were properly dismissed for lack of subject matter jurisdiction or failure to state claim upon which relief may be granted.

Table Mountain Rancheria v. American Vantage Companies
Docket No. 02-1770

Subjects: Non-Indians; Contractors; Breach of contract; Indian gaming; Jurisdiction; Table Mountain Racheria of California; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.).

*Issues: Are state law claims for breach of contract brought against Indian tribe by private gaming management company, involving matters integrally related to tribe's control over its gaming operations, completely preempted by IGRA and pursuable only in federal court?

History: Petition for certiorari was filed on 6/2/2003. Petition was denied on 10/6/03.

*Holding below: American Vantage Companies v. Table Mountain Rancheria, 126 Cal.Rptr.2d 849, Consultant's contract with Indian tribe to provide technical assistance, training, and advice to tribe in operation of its gaming activities, and consultant's agreement with tribe to terminate prior contract to manage tribe's casino, were determined by National Indian Gaming Commission not to require approval of its chairman, and thus consultant's state law causes of action against tribe for breach of each contract and seeking money damages as sole remedy are not preempted by Indian Gaming Regulatory Act, under which regulation of contracts is limited to management contracts and agreements collateral thereto.

In re Riggs
Docket No. 02-1774

Subjects: Indian courts -- Navajo Nation, Arizona, New Mexico & Utah -- Enforcement of opinions and orders. Jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah. Comity of nations. Due process of law.

*Issues:(1) Does Navajo Nation qualify as "territory," or "possession," or federal independent contractor, for purposes of 28 U.S.C. § 1738 full faith and credit and comity enforcement of Navajo Nation orders by this court by way of extraordinary writ of mandamus? (2) Does respondents' "unified defense" so contradict rules of ethical representation that petitioners are denied due process and respondents should be prohibited from using unified defense in federal courts by extraordinary writ of prohibition by this court?

History: Petition for certiorari was filed on 5/28/2003. Petition was denied on 10/6/03.

*Holding below: Petition for writ of mandamus asking Tenth Circuit to vacate and replace its decision upholding dismissal of certain claims seeking enforcement of Navajo court orders and remanding others for determination of Navajo court jurisdiction, MacArthur v. San Juan County, Utah, 309 F.3d 1216 (2002), cert. denied, 71 U.S.L.W. 3750 (U.S. June 2, 2003) (Nos. 02-1253, 02-1444, 02-1445), amounts to untimely petition for rehearing and is denied; petition for mandamus to direct district court either to recuse or to follow different directions than those given in Tenth Circuit's 2002 decision is denied because petitioners, who may file appeal from any judgment adverse to them, have other adequate means to attain relief they desire and thus are not entitled to mandamus relief.

Shook v. Montana
Docket No. 02-1658

Subjects: Hunting on Indian reservations -- Montana; Indians of North America – Non-members of a tribe; Game laws -- Montana; Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Equality before the law – United States; Conflict of laws.

*Issues: (1) Does state have same trust relationship with Native Americans as does federal government? (2) Does state law that allows tribal members to hunt wildlife within Indian reservation while denying that same right to nontribal members who own property within those boundaries create racial classification that must be subjected to strict scrutiny in accordance with Richmond, Va. v. J.A. Croson Co., 488 U.S. 469 (1989), and Adarand Constructors Inc. v. Peña, 515 U.S. 200 (1995)? (3) Does state law that distinguishes between tribal and nontribal members, when tribal membership is dependent on ancestry, create racial classification that must be subjected to strict scrutiny?

History: Petition for certiorari was filed on 5/9/2003. Petition was denied on 10/6/03.

*Holding below: State v. Shook (Briefs), 313 Mont. 347, Montana Supreme Court. Federal Indian law is binding on state, and, therefore, state constitutional equal protection guarantee must allow for state classifications based on tribal membership if those classifications can rationally be tied to fulfillment of unique federal, and consequently state, obligation towards Native Americans; state regulation that prohibits nontribal members from hunting big game on Indian reservations fulfills that test by preserving wildlife population for hunting by Native Americans, as required by treaties, and, therefore, nontribal member could be prosecuted for illegal hunting on reservation.

Related News Stories: Hunter loses fight against law (MontanaStandard.com) 10/10/03, Reservation hunting suit turned away (Missoulan.com) 10/10/03.

Long v. United States
Docket No. 02-1801

Subjects: Double jeopardy; Jurisdiction -- Menominee Indian Tribe of Wisconsin; Jurisdiction -- United States; Theft; Malicious mischief.

*Issues:Does federally recognized Indian tribe, whose present power to prosecute tribal offenses was established by act of Congress, prosecute as sovereign separate from federal government for purposes of dual sovereignty exception to Fifth Amendment's double jeopardy clause?

History: Petition for certiorari was filed on 6/10/2003. Petition was denied on 10/6/03.

*Holding below: United States v. Long, 2003 WL 140083, 7th. cir. The United States District Court for the Eastern District of Wisconsin, Lynn Adelman, J., 183 F.Supp.2d 1106, dismissed the indictment. Government appealed. Congress's 1973 restoration of Native American tribe's sovereign status is not mere delegation of federal power to tribe and, therefore, tribe is separate sovereign for purposes of dual sovereignty exception to Fifth Amendment's double jeopardy clause; person prosecuted in tribal court could be subsequently prosecuted in federal court for same offense.

Ramsey v. United States
Docket No. 02-1547

Subjects: Fuel -- Taxation; Confederated Tribes and Bands of the Yakama Indian Nation of the Yakima Reservation, Washington -- Taxation; Confederated Tribes and Bands of the Yakama Indian Nation of the Yakima Reservation, Washington -- Treaties -- Canons of construction favoring Indian.

*Issues: (1) Are previous opinions of this court, applying canons of treaty construction to construe language "the right of taking ... in common with citizens of the territory" in Article III, Paragraph 2, of Treaty with Yakamas of 1855 (12 Stat. 951), and finding that "right ... in common with" language reserved to Yakama specific and special rights to take fish, in direct conflict with opinions of Ninth Circuit in this case finding that identical language of same treaty article provided Yakamas with no special and specific rights as to travel on public highways? (2) Is opinion below, finding that terms "in common with" and "right to travel" in Article III provide Yakamas no rights, in direct conflict with this court's opinion in Washington v. Washington State Passenger Fishing Vessel Ass'n, 443 U.S. 658 (1979), construing same language to grant specific rights to Yakama Indians? (3) Does reasoning of opinion of this court in Tulee v. Washington, 315 U.S. 682 (1942), construing "in common with" language of Article III, Paragraph 2, of Treaty with Yakama of 1855 (12 Stat. 951) as reserving to Yakama tribal members right to take fish without payment for fees for that right, conflict with court of appeals' ruling that identical language of Article III, Paragraph 1, of treaty regarding right of Yakama Indians to haul tribally produced goods to market on public highways free of federal diesel and heavy vehicle use tax, provided no similar exemption? (4) Is court of appeals' opinion requiring that Indian treaty must contain "express exemptive language" on its face before it may qualify Indian for federal tax exemption in direct conflict with prior rulings of this court in Choate v. Trapp, 224 U.S. 665 (1912), Squire v. Capoeman, 351 U.S. 1 (1956), and Chickasaw Nation v. United States, 534 U.S. 84, 70 U.S.L.W. 4020 (2001), holding that such language need only be "clearly expressed," with all doubtful terms and expressions construed in favor of Indians?

History: Petition for certiorari was filed on 4/22/2003. Petition was denied on 10/6/03.

*Holding below: Ramsey v. United States. 9th cir. 302 F.3d 1074. Language in 1855 Yakama Treaty stating that "free access from the [reservation] to the nearest public highway, is secured to [the Yakama]; as also the right in common with citizens of the United States, to travel upon all public highways," does not provide express exemptive language from which court can discern intent to exempt Yakama from generally applicable federal heavy vehicle and federal diesel fuel taxes, and thus, member of federally recognized Indian tribe who lives and works on reservation is subject to federal heavy vehicle and diesel fuel taxes for hauling timber that was cut on reservation to off-reservation markets using diesel fuel trucks that exceed 55,000 pounds gross vehicle weight.

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