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Indian Law Bulletins  |  U.S. Supreme Court  |  2004-2005 Term

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Last updated: July 8, 2005

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Four Indian law-related cases have been decided by the Supreme Court in the 2004-2005 term.

A case of interest to Indian law practitioners....
Alaska v. United States
125 S.Ct. 2137
Docket No. 128 Original
Oral Argument Transcripts

Subject: Submerged lands and wetlands.

*Issues: Does Alaska, as opposed to United States, have title to submerged lands within Alexander Archipelago of Southeast Alaska that are behind closing lines drawn by United States to mark seaward limit of inland waters in 1903 Alaska Boundary Tribunal arbitration, including pockets and enclaves that are more than three miles from coastline of mainland or any of islands behind closing lines?

Holdings: (from Westlaw) The United States Supreme Court, Justice Kennedy, held that:
(1) the waters were not historic inland waters;
(2) waters did not qualify as inland waters under juridical bay theory;
(3) federal government reserved the submerged lands underlying Glacier Bay and the remaining waters within the monument's boundaries, supporting federal government's claim; and
(4) Alaska Statehood Act (ASA) expressed Congressional intent to retain submerged lands underlying the waters of Glacier Bay National Park in Alaska as part of a federal reservation, rebutting the presumption that Alaska held title to those lands.

Exceptions overruled.

History: Petition for certiorari was filed on 03/30/04. Petition granted 3/30/04. Argued 1/10/05. Decided 6/06/05.

Supreme Court Pleadings and orders: Briefs and orders

City of Sherrill, New York v. Oneida Nation of New York
125 S.Ct. 1478
Docket No. 03-855

Briefs
Oral Argument Transcript

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?

Holding: (from Westlaw) The Supreme Court, Justice Ginsburg, held that equitable considerations of laches, acquiescence, and impossibility barred tribe's claim that its open-market purchases of the parcels unified the fee and aboriginal title in the parcels such that the tribe could assert sovereign dominion over the parcels and avoid payment of city property taxes on the parcels.
Reversed and remanded.

History: Petition for certiorari was filed on 12/11/2003. Petition granted 6/28/04. Argued 1/11/05. Decided 3/29/05.

Holding below: Oneida Indian Nation of New York v. City of Sherrill, 337 F3d. 139, 2nd Cir. 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: Supreme Court overturns Oneida Nation case (Indianz.com) 3/30/05. Court Sides with Sherrill. (UticaOD.com) 3/29/05. Oneida Indian Nation responds to the City of Sherrill's U.S. Supreme Court petition. (Oneida Dispatch) 01/29/04; High Court Wants Government's Perspective on Oneida Tax Feud (Newsday.com) 02/23. Word from Supreme Court Expected Monday (Oneida Dispatch) 02/21/04. Indian land dispute could have far-reaching effects (Newsday.com) 1/8/05. Supreme Court justice fears governmental ``chaos'' if tribe wins tax case. (Newsday.com) 1/11/05. Cornell University oral argument preview.

 

The following two cases were consolidated by the U.S. Supreme Court.

Cherokee Nation of Oklahoma v. Leavitt
543 U.S. 631
Docket No. 02-1472
Briefs

Subjects: United States. Indian Self-Determination and Education Assistance Act (25 USC 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?

Holding: (from Westlaw) The United States Supreme Court, Justice Breyer, held that, where Congress had appropriated sufficient legally unrestricted funds to pay contracts in question, government could not avoid its contractual obligation to pay contract support costs on grounds of “insufficient appropriations.”
Affirmed in part and reversed in part and remanded.

History: Petition for certiorari was filed on 4/03/03.Petition granted 3/22/04.Argued 11/09/04. Argued 11/09/04. Decided 3/1/05.

*Holding below: Cherokee Nation v. Thompson, 11/26/02, 311 F.3d 1054, 10th Cir. 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. Summary and analysis from Cornell University. Details from the Medill School of Journalism, Northwestern University

Leavitt v. Cherokee Nation of Oklahoma
543 U.S. 631
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 USC 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?

Holding: (from Westlaw) The United States Supreme Court, Justice Breyer, held that, where Congress had appropriated sufficient legally unrestricted funds to pay contracts in question, government could not avoid its contractual obligation to pay contract support costs on grounds of “insufficient appropriations.”
Affirmed in part and reversed in part and remanded.

History: Petition for certiorari was filed on 12/11/2003. Petition granted 3/22/04. Argued 11/09/04. Decided 3/1/05.

Holding below: Thompson v. Cherokee Nation of Oklahoma, 2003 WL 21511710, Federal Cir. 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. Justices considering whether government must reimburse tribes for operating programs (Las Vegas Review-Journal) 11/7/04. Summary and analysis from Cornell University. Details from the Medill School of Journalism, Northwestern University

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Petition for Certiorari has been granted in two Indian law-related cases this term. These cases have been carried over into the 2005-2006 term.

Gonzales v. Centro Espirita Beneficiente Uniao do Vegetal
Docket No. 04-1084
Briefs
Oral Argumnent Transcripts

Subjects: União do Vegetal -- Rituals; United States; United States. Controlled Substances Act; Hoasca; Hallucinogenic plants.

*Issues: Does 1993 Religious Freedom Restoration Act require government to permit importation, distribution, possession, and use of Schedule I hallucinogenic controlled substance, when Congress has found that substance has high potential for abuse, it is unsafe for use even under medical supervision, and its importation and distribution would violate international treaty?

History: Petition for certiorari was filed on 2/10/2005. Petition was granted on 4/18/05.

*Holding below:Centro Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389 F.3d 973, 10th Cir. (en banc). In light of Congress's implicit determination in Religious Freedom Restoration Act that harm prevented and public interest served by protecting citizen's free exercise of religion must be given controlling weight, barring government's proof, by specific evidence, that its interests are more compelling, district court did not abuse its discretion in preliminarily enjoining enforcement of Controlled Substances Act against church's use of hoasca (hallucinogenic tea) in religious ceremonies, based on its finding that scale tipped in church's favor given closeness of parties' evidence regarding safety of hoasca use and its potential for diversion.

Related News Stories: Church Use of Hallucinogen to Get U.S. Supreme Court Scrutiny (Bloomberg.com) 4/18/05. Supreme Court to Hear Tea Case (AP) 4/18/05.

Richards v. Prairie Band Potawatomi Nation
Docket No. 04-631
Briefs

Subjects: Motor fuels -- Taxation; Prairie Band of Potawatomi Indians, Kansas -- Taxation; Kansas; Distributors (Commerce) -- Kansas; Exclusive and concurrent legislative powers -- United States; Sovereignty -- Prairie Band of Potawatomi Indians, Kansas; Kansas. Dept. of Revenue.

*Issues: (1) When state taxes receipt of fuel by nontribal distributors, manufacturers, and importers, and such receipt occurs off-reservation, does interest balancing test in White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), apply because fuel is later sold by tribe to final consumers? (2) Should court abandon White Mountain Apache interest balancing test in favor of preemption analysis based on principle that Indian immunities are dependent upon congressional intent? (3) Did court of appeals err in applying White Mountain Apache interest balancing test by, inter alia, placing dispositive weight on fact that tribally owned gas station derives income from largely nontribal patrons of tribe's nearby casino?

History: Petition for certiorari was filed on 11/05/2004. Petition was granted on 2/28/05.

*Holding below: Prairie Band of Potawatomi Nation v. Richards, 379 F.3d 979, 10th Cir. Kansas tax on fuel supplied to Indian tribe for its sole, on-reservation gas station by non-Indian distributors is preempted by federal law because, although state has interest in raising revenue, ax is incompatible with and outweighed by strong tribal and federal interests, including (i) tribal and federal interests in tribal self-sufficiency and economic development, including efforts to attract non-Indians to tribe's on-reservation casino, of which fuel sales, 73 percent of which are to casino patrons and employees, are integral and essential part, and (ii) tribe's need to raise fuel revenues to construct and maintain, without state assistance, reservation roads, bridges, and related infrastructure, including access road to casino from interstate highway, to which tribe's fuel revenue is dedicated by tribal law.

Related News Stories: Supreme Court will hear Potawatomi fuel tax case. (Native American Times) 2/28/05.

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Petition for certiorari is pending in three Indian law cases this term. These cases have been carried over into the 2005-2006 term.

Joan Wagnon, Secretary, Kansas Department of Revenue, et al.,
v.
Prairie Band Potawatomi Nation
Docket No. 04-1740
Briefs & Pleadings

Subjects: Motor vehicles -- Registration and transfer -- Prairie Band of Potawatomi Indians, Kansas; Motor vehicles -- Registration and transfer -- Kansas; Jurisdiction.

*Issues: not yet available

History: Petition for certiorari was filed on 06/23/2005.

*Holding below: (from Westlaw) Prairie Band Potawatomi Nation v. Wagnon, 402 F.3d 1015, The Court of Appeals, McKay, Circuit Judge, held that Kansas officials were properly enjoined from refusing to recognize tribe's motor vehicle registrations and titles and enforcing State's own requirements on vehicles registered by tribe.

 

Delaware Tribe of Indians v. Cherokee Nation of Oklahoma
Docket No. 04-1368

Subjects: Federal recognition of Indian tribes -- Delaware Tribe of Indians, Oklahoma; Restorations, Political -- Delaware Tribe of Indians, Oklahoma; Cherokee Nation of Oklahoma; United States. Dept. of the Interior; United States. Federally Recognized Indian Tribe List Act.

*Issues: (1) Did court of appeals err in holding that this court's decisions in Cherokee Nation v. Journeycake and Delaware Indians v. Cherokee Nation necessarily determined that Delaware Tribe of Indians abandoned its organized tribal status in 1867 agreement with Cherokee, which holding conflicts with this court's more recent declaration in Delaware Tribal Business Committee v. Weeks, 430 U.S. 73 (1977), that "[d]espite their association with the Cherokees, these Indians ... have over the years maintained a distinct group identity, and they are today a federally recognized tribe"? (2) Did court of appeals err in giving no deference to interpretation of 1867 agreement made by secretary of interior regarding Delaware Tribe's status, and in refusing to consider effect of post-1867 relations between Delaware Tribe and United States despite secretary's express reliance on legislative action and administrative practice to confirm her interpretation? (3) When secretary determined in 1996, on record following full administrative review with notice and opportunity for all affected parties to be heard, that 1979 letter issued by subordinate official limiting federal relations with Delaware Tribe was erroneous and should be withdrawn, and direct federal relations restored, did court of appeals err in holding that 1994 Federally Recognized Indian Tribe List Act and federal acknowledgment procedures of 25 C.F.R. Part 83 prevented secretary from so correcting that error?

History: Petition for certiorari was filed on 04/11/2005.

*Holding below: Cherokee Nation of Oklahoma v. Norton, 389 F.3d 1074, Department of Interior's 1996 decision to grant federal recognition to Delaware Tribe of Indians as tribal entity was improper interpretation of 1867 agreement between Delaware Tribe and Cherokee Nation and contrary to rulings in Cherokee Nation v. Journeycake, 155 U.S. 196 (1894), and Delaware Indians v. Cherokee Nation, 193 U.S. 127 (1904), that Delaware Tribe and its members became incorporated into Cherokee Nation under such agreement; agency's decision also violated Section 103(3) of Federally Recognized Indian Tribe List Act, and its use of "retract and declare" procedure in recognizing tribe was arbitrary and capricious in violation of Administrative Procedure Act, because agency impermissibly elected not to follow procedures set out in 25 C.F.R. Part 83 for recognizing Indian tribe and did not even properly waive application of such procedures.

Wyoming Saw Mills, Inc. v. United States
Docket No. 04-1175

Subjects: Medicine Wheel National Historic Landmark (Wyo.); Wyoming Sawmills; United States. Forest Service; United States. National Forest Management Act of 1976; Historic preservation -- Planning; Freedom of religion -- United States; United States. Constitution. 1st Amendment; Standing to sue.

*Issues: not yet available

History: Petition for certiorari was filed on 03/02/2005.

*Holding below: Wyoming Sawmills Inc. v. United States Forest Service, 383 F.3d 1241, 10th cir.The Court of Appeals, Holloway, Circuit Judge, held that: (1) timber company lacked standing to pursue Establishment Clause challenge, and (2) Service did not abuse its discretion in finding that forest plan amendment by which HPP was implemented was not significant change of overall forest plan. Affirmed.

Related News Stories: See the Becket Fund for religious Liberty Web site

 

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

Cogger v. Becker County, Minnesota
Docket No. 04-1419

Subjects: Becker County (Minn.); Mobile homes -- Taxation -- On Indian reservations; Prefabricated houses -- Taxation -- On Indian reservations; Real property -- Defined -- Minnesota; Real property -- Taxation -- Minnesota.

*Issues: (1) Do provisions of federal law prohibit assessment of real property tax upon manufactured home, vinyl skirting, three storage sheds, two wooden decks, and 8' x 6' porch? (2) Does County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation, 502 U.S. 251 (1992), grant states authority to reclassify manufactured home as real property so that real estate tax may be imposed?

History: Petition for certiorari was filed on 04/20/2005. Petition was denied on 6/27/05.

*Holding below: Cogger v. Becker County, 690 N.W.2d 739, Supreme court of Minnesota. Because Congress has granted states authority to assess ad valorem taxes on real property owned by Indians in fee title on Indian land, including authority to determine definition of real property, Minnesota county may apply that state's definition of real property and impose real property tax on manufactured home, vinyl skirting, decks, and storage sheds located on reservation within county and owned by Indian tribal members.

Wood v. United States
Docket No. 04-8571

Subjects: Trials (Burglary); Indians of North America; Burglary -- Indian Country; Sentences (Criminal procedure).

*Issues: not yet available

History: Petition for certiorari was filed on 02/05/2005. Petition was denied on 6/27/05.

*Holding below:United States v. Wood, 386 F.3d 961, 10th cir. The Court of Appeals, Baldock, Circuit Judge, held that Sentencing Guidelines required imposition of sentence between minimum and maximum sentences state law established for the particular crime.

Comstock Resources, Inc. v. Kennard
Docket No. 04-165
Briefs

Subjects: United States. False Claims Amendments Act of 1986; Jurisdiction -- United States. District Court (Wyoming); Oil and gas leases; Comstock Resources, Inc.; Sales -- United States -- Cases; Leases -- United States -- Cases; Wind River Indian Reservation (Wyo.).

*Issues: Under False Claims Act, do individuals who possess no personal, firsthand knowledge of any aspect of alleged fraud have requisite "direct and independent knowledge" to qualify as "original source" under 21 U.S.C. § 3730(e)(4)?

History: Petition for certiorari was filed on 8/02/2004. Petition was denied on 6/27/05.

*Holding below: Kennard v. Comstock Resources, Inc. 363 F.3d 1039, 10th Cir. Qui tam relators who suspected fraud on government with respect to oil and gas leases and independently investigated relatively obscure public documents to support their fraud allegations are "original source" of information that was first publicly disclosed in another complaint and thus are not jurisdictionally barred from pursuing qui tam suit under False Claims Act.

Related News Stories: Court Revives Royalties Claim (Billings Gazette) 04/07

Kahawaiolaa v. Norton
Docket No. 04-1041
Briefs

Subjects: Native Hawaiians; United States. Dept. of the Interior; Federal recognition of Indian tribes -- Native Hawaiians; Issues and challenges; Equality before the law -- Native Hawaiians; United States. Constitution. 5th Amendment.

*Issues: Do U.S. Department of Interior regulations that preclude groups of indigenous Hawaiians from applying for recognition that they exist as Indian tribes, pursuant to 25 C.F.R. Part 83, violate equal protection component of Fifth Amendment?

History: Petition for certiorari was filed on 01/25/2005. Review was denied on 6/13/05.

*Holding below: Kahawaiolaqa v. Norton, 386 F.3d 1271, 9th cir. Department of Interior regulations restricting federal acknowledgment of Indian tribes to those "indigenous to the continental United States," defined as "contiguous 48 states and Alaska," 25 C.F.R. §§ 83.1, 83.3(a), and thus excluding native Hawaiians, have rational basis given unique history of Hawaii, Congress's treatment of native Hawaiians in veritable patchwork of legislation, findings, resolutions, and historic treaties, and historical restrictions of acknowledgment process to continental American Indian tribes, and thus do not violate native Hawaiians' equal protection rights under Fifth Amendment.

VanGuilder v. United States
Docket No. 04-1401

Subjects: Indian title -- Governors Island (New York County, N.Y.); Governors Island (New York County, N.Y.); Sovereign immunity; United States. Quiet Title Act; Land tenure; Land titles; Ejectment.

*Issues: Does City of Sherrill, N.Y. v. Oneida Indian Nation of N.Y., 73 U.S.L.W. 4242 (U.S. 2005), by necessary implication restate constitutional law legal standing and territorial integrity of complainant herein and, correspondingly, entitle him by operation of law alone to constitutional law remedy of ejectment, by way of declaratory relief in lieu of physical ejectment, in this court?

History: Petition for certiorari was filed on 04/13/2005. Review was denied on 6/13/05.

*Holding below: VanGuilder v. United States, 2005 WL 426703, DC Cir. Litigant claiming "aboriginal title" to certain lands, including Governor's Island in New York, has not identified any waiver of sovereign immunity relevant to his claims other than perhaps Quiet Title Act, has made no attempt to demonstrate that district court erred in holding that he failed to state claim under QTA, and has not established that he is exempt from requirements of QTA or more general requirement that plaintiff show waiver of sovereign immunity authorizing his claims against United States.

Ackerman v. Edwards
Docket No. 04-1253
Briefs

Subjects: Redding Rancheria, California; Tribal membership -- Redding Rancheria, California; United States. Public Law 280; Jurisdiction -- California; Jurisdiction -- Redding Rancheria, California; Civil actions arising in Indian Country (Calif.) -- Redding Rancheria, California; Constitutions -- Redding Rancheria, California; United States. Indian Civil Rights Act.

*Issues: Does Pub. L. No. 280 confer jurisdiction on courts of California in suits by Indians against officials of their own tribe to enforce their own tribal constitution and ICRA?

History: Petition for certiorari was filed on 03/15/2005. Petition was denied on 5/23/05.

*Holding below: Ackerman v. Edwards, 17 Cal.Rptr.3d 517, Court of Appeal of California, Third Appellate District. Pub. L. No. 280 (codified at 28 U.S.C. § 1360 et seq.), which provides that certain states, including California, "shall have jurisdiction over civil causes of action between Indians or to which Indians are parties ... to the same extent that such State has jurisdiction over other civil causes of action," does not confer jurisdiction on California state courts over disputes between tribal members and tribes, and thus trial court properly dismissed action by putative member of federally recognized tribe against members of tribal council, alleging that council resolution setting forth procedures for hearings to reconsider tribal member's enrollment in tribe violates both Indian Civil Rights Act and tribal constitution.

Prescott v. Little Six
Docket No. 04-1197
Briefs

Subjects: Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake; Little Six, Inc.; United States. Employee Retirement Income Security Act of 1974; Retirement planning; Sovereign immunity; Jurisdiction -- United States. District Court (Minnesota); District courts; Jurisdiction; Deference to tribal courts; Jurisdiction -- Shakopee Mdewakanton Sioux Community of Minnesota Prior Lake.

*Issues: Must federal common law developed under ERISA yield to tribal corporate law to determine enforceability of employee benefit plans established by Indian tribal corporation in favor of its employees?

History: Petition for certiorari was filed on 03/07/2005. Petition was denied on 5/16/05.

*Holding below:Prescott v. Little Six, Inc., 387 F.3d 753, 8th Cir. In action under Employee Retirement Income Security Act by former employees of Native American tribal corporation for payment of benefits under employee benefit plans purportedly created by tribe, district court erred by not according deference to tribal court findings, which were not clearly erroneous, that plans were never formally approved under tribal law, that valid and enforceable benefits arrangement therefore never existed, and that there was thus nothing to which ERISA could apply.

VanGuilder v. New York
Docket No. 04-1161

Subjects: Mahican Indians -- History -- 18th century -- New York (State); Mahican Indians -- Treaties; Mahican Indians -- New York (State) -- Relocation -- Wisconsin; Indian title -- Mahican Indians -- New York (State); Hudson River (N.Y. and N.J.); Jurisdiction -- New York (State).

*Issues: (1) Do 18th-century treaties under which Mahican Indians departing New York for new reservation lands in Wisconsin deeded over previously reserved Mahican territory to petitioner's group of stay-behind Mahicans confer legal standing to defend or to surrender above described indigenous sovereignty under constitutional law without regard for federal and state law? (2) Has New York's beneficial interest always been subject to indigenous sovereignty, pending registration on title to any given parcel of treaty?

History: Petition for certiorari was filed on 02/28/2005. Petition was denied on 5/2/05.

*Holding below: VanGuilder v. New York, 2005 N.Y. LEXIS 16, Supreme Court of New York, Appeal does not lie from trial court's dismissal, for lack of jurisdiction, failure to state claim, and failure to establish statutory standing, of plaintiff's constitutional claim that New York's interest in Hudson River drainage basin is subject to Mahican Nation title and vests in him, and thus appeal is dismissed.

Blaine County, Mont. v. United States
Docket No. 04-775
Briefs

Subjects: Voting -- Blaine County (Mont.); Local elections -- Blaine County (Mont.); Blaine County (Mont.); United States; Indians of North America -- Suffrage -- Montana; United States. Voting Rights Act of 1965; United States. Constitution. 14th Amendment; United States. Constitution. 15th Amendment.

*Issues: (1) Does enactment of Section 2 of VRA constitute constitutional exercise of Congress's power under enforcement clauses of 14th and 15th Amendments as applied to at-large voting in political subdivisions not covered by Section 5 of VRA? (2) Does alleged violation of Section 2 of VRA require proof (a) that minority group has been denied equal opportunity both to participate in political process and to elect its candidates of choice; (b) that causal connection exists between past or present purposeful discrimination and minority group's lack of opportunity to participate in political process and to elect candidates of its choice; and (c) that minority group is politically cohesive because it possesses distinctive and unique political interests that can be addressed by election of its candidate of choice to political body in question?

History: Petition for certiorari was filed on 12/16/2004. Petition was denied on 4/18/05.

*Holding below:United States V. Blaine County, Montana, 363 F.3d 897, 9th Cir. Section 2 of Voting Rights Act, which prohibits voting practices or procedures that lead to denial of voting rights, was proper exercise of Congress's authority under 14th and 15th Amendments, notwithstanding Montana county's contention that geographic restrictions like those included in Section 5 of VRA, which requires jurisdictions to submit every change in their voting procedures to Department of Justice for preclearance, should have been included and that Congress impermissibly failed to document nationwide pattern of purposeful voting discrimination to justify nationwide application of Section 2; Section 2 and Section 5 serve different purposes, and geographic limitations of latter, which applies only to jurisdictions with recent history of using voting tests and devices to deny right to vote, are not necessary with respect to Section 2, given, among other things, U.S. Supreme Court ruling in Nevada Dep't of Human Res. v. Hibbs, 538 U.S. 721, 71 U.S.L.W. 4375 (2003), that Congress need not document evidence of constitutional violations in every state to adopt statute with nationwide applicability, and, in any event, legislative history shows that Congress did find of evidence of substantial discrimination even outside jurisdictions covered by Section 5; Congress did not exceed its authority when it adopted "results" test for Section 2, in light of ruling in City of Rome v. United States, 446 U.S. 156 (1980), that Section 5 of VRA could constitutionally be applied to electoral procedures having only discriminatory results without being motivated by discriminatory intent, and fact that Section 2 is far narrower than preclearance requirement of Section 5; district court did not err in ruling that at-large voting system of Blaine County, Mont., violates Section 2, in light of district court's findings that (i) county's Native Americans were politically cohesive, as evidenced by their consistent bloc voting; (ii) white majority voted sufficiently as bloc to enable it to defeat Native Americans' preferred candidates; (iii) evidence indicated history of official discrimination against Native Americans in elections in state and against Native American population generally; (iv) large size of county makes it very difficult for Native American candidates to campaign countywide in at-large elections; and (v) county's asserted justifications for having at-large elections were tenuous.

Related News Stories: Blaine voting system faces U.S. Supreme Court review (Great Falls Tribune) 3/27/05

Shenandoah v. Halbriter
Docket No. 04-803
Briefs

Subjects: Habeas corpus; United States. Indian Civil Rights Act; Housing -- Law and legislation -- Oneida Nation of New York; Jurisdiction -- United States; Discrimination in housing -- Oneida Nation of New York; Dissenters.

*Issues: (1) Does Indian Civil Rights Act, in 25 U.S.C. § 1302(9), vest U.S. courts with subject matter jurisdiction to, first, determine whether challenged legislation enacted by Indian nation is in fact bill of attainder and then to grant such habeas corpus relief under 25 U.S.C. § 1303 as is necessary to release victims of bill of attainder from lingering restraints upon their liberty resulting from such bill of attainder? (2) Is respondents' legislatively enacted "housing program" bill of attainder as applied to petitioners under three-pronged test articulated in Cummings v. Missouri, 71 U.S. 277 (1867)?

History: Petition for certiorari was filed on 12/10/2004.

*Holding below: Shenandoah V. Halbritter, 366 F.3d 89, 2nd Cir. Enforcement of tribal ordinance requiring removal or demolition of homes that cannot be repaired or rehabilitated to comply with National Housing Act worked economic restraint, rather than restraint on liberty, and thus was not grounds for invoking district court's habeas corpus jurisdiction under Indian Civil Rights Act; although petitioners alleged that ordinance was designed to remove them from tribe as punishment for their constant dissent, terms of ordinance apply to all residents of territory at issue, cannot be said to single out any individuals, and thus do not constitute bill of attainder.

Related News Stories: Supreme Court Roundup: Indian law cases rejected (Indianz.com) 4/19/05

Eastern Shoshone Tribe of the Wind River Reservation v. United States
Docket No. 04-731
Briefs

Subjects: Tribal trust funds -- Shoshone Tribe of the Wind River Reservation, Wyoming; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. Dept. of the Interior; Gravel; Sand; Sovereign immunity -- United States; Damages.

*Issues:Federal Cir. Do Interior Department appropriations acts from 1990 to present that delay commencement of statute of limitations on Indian claims for breach of trust against government "concerning losses to or mismanagement of trust funds, until the affected tribe or individual Indian has been furnished with an accounting of such funds from which the beneficiary can determine whether there has been a loss," apply to claims for breach of trust based on mismanagement of Indian trust resources that resulted in losses to trust funds?

History: Petition for certiorari was filed on 11/24/2004. Petition for certiorari was denied 4/18/05.

*Holding below: Shoshone Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339, Appropriations acts that permit Native American tribes to bring their trust management claims after they receive accounting, regardless of when such claims accrue, toll limitations periods only for those claims relating to (i) government's mismanagement of tribal trust funds after their collection, such as delay in depositing collected monies in interest-bearing accounts or assessing penalties for late payment, and (ii) losses to trust resulting from government's failure to timely collect amounts due and owing to tribes under their sand and gravel contracts, but do not toll limitations for tribal claims that government mismanaged tribal sand and gravel assets by failing to maximize return from leases with third parties.

Cholla Ready Mix, Inc. v. Mendez
Docket No. 04-952
Briefs

Subjects: Cholla Ready Mix, Inc. (Ariz.); Landowners -- Arizona; Right of property; Sacred sites -- Defined; Freedom of religion -- United States; United States. Constitution. 1st Amendment; Mining rights; Hopi Tribe of Arizona; Navajo Nation, Arizona, New Mexico & Utah; Zuni Tribe of the Zuni Reservation, New Mexico; Roads -- Design and construction -- Arizona.

*Issues: (1) Does decision by state officials to bar landowner from using his private property because some American Indians assert that such land is "sacred" violate establishment clause, notwithstanding claims by state officials that "sacredness" of land is historically and culturally important to those Indians? (2) May complaint alleging establishment clause violation, which satisfies notice pleading, be dismissed for not alleging facts sufficient to establish prima facie case under Lemon v. Kurtzman, given holding of this court in Swierkiewicz v. Sorema, 534 U.S. 506, 70 U.S.L.W. 4152 (2002)?

History: Petition for certiorari was filed on 01/12/2005. Petition was denied on 4/18/05.

*Holding below: Cholla Ready Mix, Inc. v. Mendez, 382 F.3d 969, 9th Cir. Under Lemon v. Kurtzman, 403 U.S. 602 (1971), which held that government conduct does not violate First Amendment's establishment clause if (i) it has secular purpose, (ii) its principal or primary effect is not to advance or inhibit religion, and (iii) it does not foster excessive government entanglement with religion, state policy against using in state highway construction projects materials mined from site that has religious, cultural, and historical significance to several Native American tribes and to nation as whole does not violate establishment clause merely because site's importance derives in part from its sacredness to tribes; contention that, in dismissing complaint, district court improperly evaluated strength of establishment clause claim is meritless, because no evidence could bolster such claim, which was premised on flawed analysis of governing law.

United States v. Shoshone Indian Tribe of the Wind River Reservation
Docket No. 04-929
Briefs

Subjects: Tribal trust funds -- Shoshone Tribe of the Wind River Reservation, Wyoming; Breach of trust -- United States; Trusts and trustees -- Accounting; United States. Dept. of the Interior; Gravel; Sand; Sovereign immunity -- United States; Damages.

*Issues: not yet available

History: Petition for certiorari was filed on 01/07/2005. Petition was denied on 4/18/05.

*Holding below: Shoshone Indian Tribe of the Wind River Reservation v. United States, 364 F.3d 1339, Federal Cir. The Court of Federal Claims, Emily C. Hewitt, J., 51 Fed.Cl. 60, denied Government's motion to dismiss. Government appealed and tribes cross-appealed. The Court of Appeals, Gajarsa, Circuit Judge, held that: (1) statute relating to tribes' remedies for mismanagement of trust funds expressly waived Government's sovereign immunity and deferred accrual of tribes' action; (2) allegation that Government mismanaged tribes' sand and gravel assets by failing to obtain the best possible market rates for the contracts failed to state a claim; but (3) allegation that Government mismanaged tribes' sand and gravel assets by failing to manage and timely collect proceeds from approved mining contracts sufficiently stated a claim; and (4) tribes were entitled to interest as part of their damages. Affirmed in part, reversed in part, and remanded. Rader, Circuit Judge, filed opinion dissenting in part.

Hammond v. Coeur d'Alene Tribe of Idaho
Docket No. 04-624
Briefs

Subjects: Motor fuels -- Taxation -- Idaho; Nez Perce Tribe of Idaho; Coeur D'Alene Tribe of the Coeur D'Alene Reservation, Idaho; Shoshone-Bannock Tribes of the Fort Hall Reservation of Idaho; Idaho. State Tax Commission; Gasoline; Service stations -- On Indian reservations -- Idaho; Distributors (Commerce) -- Idaho; Non-members of a tribe; Sovereign immunity -- Indian Country (Idaho); United States -- Hayden-Cartwright Act.

*Issues: (1) When state legislature expressly allocates legal incidence of motor fuels tax to distributor of such fuel, may federal court nonetheless deem such incidence to be borne by retailers? (2) Does term "United States military or other reservations" in Section 10 of Hayden-Cartwright Act encompass Indian reservations?

History: Petition for certiorari was filed on 11/05/2004. Petition was denied on 2/28/05.

*Holding below:Coeur D'Alene Tribe of Idaho v. Hammond, 384 F.3d 674, 9th Cir. Incidence of Idaho tax on motor fuel delivered by nontribal distributors for sale on tribal reservations by tribally owned gas stations impermissibly falls on tribes, notwithstanding state legislature's declared intent to shift incidence of tax to distributors, and Section 10 of Hayden-Cartwright Act, which authorizes states to tax motor fuel sales on "United States military or other reservations," does not manifest sufficiently clear congressional intent to abrogate tribal immunity and allow states to tax gasoline sales on Indian reservations.

Related News Stories: U.S. Supreme Court asked to rule on state taxation (Indianz.com) 12/2/04.

Babbitt, et al. v. United States District Court for the District of Columbia, et al
Docket No. 04-811

Subjects: Babbitt, Bruce E.; United States. District Court (District of Columbia); Impartiality; IIM (Individual Indian monies) accounts -- Accurate accounting and account reform; IIM (Individual Indian monies) accounts -- Records; Breach of trust -- United States; United States. Dept. of the Interior; Trusts and trustees -- Accounting.

*Issues: Did district court's denial of personal knowledge of disputed evidentiary facts, notwithstanding its acknowledged and extensive ex parte communications, foreclose finding that court's impartiality "might reasonably be questioned" under 28 U.S.C. § 455(a)?

History: Petition for certiorari was filed on 12/13/2004. Petition was denied on 2/22/05.

*Holding below: In re Brooks, 383 F.3d 1036, DC Cir. No reasonable and informed observer would question impartiality of district court judge whose recusal is sought, on basis of his ex parte contacts with special master and special master-monitor, by 11 current and former officials and employees of Departments of Interior and Justice, each of whom was subject of contempt proceedings before judge for conduct relating to litigation over DOI's handling of money held in trust for individual Indians, inasmuch as judge unequivocally stated that such ex parte communications did not provide him with substantive information or knowledge of disputed evidentiary facts, and thus petitions for mandamus seeking recusal under 28 U.S.C. § 455(a), which requires recusal when judge's "impartiality might reasonably be questioned," are denied, despite judge's statements in prior, related opinions that he was "personally aware" of background of meetings between deputy secretary of DOI and monitor, and that monitor "has always informed this [c]ourt about the nature, extent, and substance of such meetings and discussions upon request"; according to judge, former statement related to his request for information verifying reasonableness and propriety of monitor's compensation requests, and latter statement refers to judge's concern with subject matter, not actual content, of meetings.

Related News Stories: U.S. Supreme Court won't take Cobell from Lamberth (Indianz.com) 2/23/05. Norton rejects invitation to testify on trust fund (Indianz.com) 2/28/05.

Taxpayers of Michigan Against Casinos v. Michigan
Docket No. 04-581
Briefs

Subjects: United States. Indian Gaming Regulatory Act; United States. Congress -- Powers and duties; Casinos -- Michigan; Gambling on Indian reservations -- Michigan; Michigan; Indian gaming -- Michigan; Tribes -- Michigan; Michigan -- Powers and duties; Intergovernmental agreements -- Michigan; Taxpayers of Michigan Against Casinos.

*Issues: Did Congress delegate to states under IGRA power to establish regulatory rules applicable to Indian casino gambling within state's borders?

History: Petition for certiorari was filed on 10/28/2004. Petition denied on 2/22/05.

*Holding below: Taxpayers of Michigan Against Casinos v. Michigan, 471 Mich. 306, Supreme Court of Michigan. Although Indian Gaming Regulatory Act provides that tribal casinos and other "Class III" gaming activities are lawful only if conducted in conformance with tribal-state compact, states have no authority under IGRA to regulate such gaming in absence of compact.

Peabody Coal v. Navajo Nation
Docket No. 04-634
Briefs

Subjects: Coal leases; Navajo Nation, Arizona, New Mexico & Utah; United States. Indian Mineral Leasing Act of 1938; United States. Racketeer Influenced and Corrupt Organizations Act; Trusts and trustees –- Accounting; Jurisdiction -- United States; Federal question; Peabody Coal Company; Coal mines and mining; Coal rights; Arbitration (Administrative law).

*Issues: Does federal question subject-matter jurisdiction arise pursuant to 28 U.S.C. § 1331 over action to enforce amendment to mineral lease between federally recognized Indian tribe and private corporation, when both lease and amendment have been approved by secretary of interior under 1938 Indian Mineral Leasing Act, and when tribe has disputed validity of lease amendment on grounds already rejected by this court in United States v. Navajo Nation, 537 U.S. 488, 71 U.S.L.W. 4146 (2003)?

History: Petition for certiorari was filed on 11/08/2004. Petition was denied 1/10/05.

*Holding below: Peabody Coal Company v. Navajo Nation, 373 F.3d 945, 9th Cir. District court lacks subject matter jurisdiction over suit brought by non-Indian coal company against federally recognized Indian tribe for enforcement of arbitration settlement agreement setting royalty rates for coal mined pursuant to commercial lease, such suit not meeting requirements for federal question jurisdiction under 28 U.S.C. § 1331; notwithstanding company's contention that case raises substantial federal question of enforceability of commercial Indian mineral leases approved by secretary of interior under federal law, its claim sounds in general contract law and does not concern validity of federal approval of contract or require resolution of any other substantial question of federal law.

Related News Stories: Peabody takes coal lease dispute to high court (Indianz.com) 12/1/04

Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin, et al., v. United States
Docket No. 04-525
Briefs

Subjects: Lac Courte Oreilles Band of Lake Superior Chippewa Indians of the Lac Courte Oreilles, Reservation of Wisconsin; Red Cliff Band of Lake Superior Chippewa Indians of Wisconsin; Sokaogon Chippewa Community of the Mole Lake Band of Chippewa Indians, Wisconsin; United States. Indian Gaming Regulatory Act (IGRA) (25 USC 2701 et seq.); Gaming -- Law and legislation; Delegation of powers -- Wisconsin; Governors -- Wisconsin -- Powers and duties; Breach of trust -- United States; Equality before the law -- United States; United States. Constitution. 5th Amendment; United States. Constitution. 10th Amendment.

*Issues: (1) Does gubernatorial-concurrence provision of IGRA violate core principles of separation of powers, including appointments clause, by handing over final federal decision to individual (governor) who is not subject to any presidential control? (2) Does gubernatorial-concurrence provision violate basic principles of federalism because it rearranges structure of state government, by which state has defined itself as sovereign, and because it makes state constitutional officer federal decisionmaker?

History: Petition for certiorari was filed on 10/15/2004. Petition was denied 1/10/05.

*Holding below: Lac Courte Oreilles Band of Lake Superior Chippewa Indians of Wisconsin V. United States,
2004 WL 909159, 7th Cir. Indian Gaming Regulatory Act provision conditioning acquisition of off-reservation lands for location of Indian gaming facilities upon state governor's agreement with determination by secretary of interior that such use would be in tribe's best interest and would not harm surrounding community does not violate constitutional separation of powers principles, federalism principles, or appointments clause.

VanGuilder v. United States
Docket No. 04-671
Briefs

Subjects: Sovereignty -- Tribes -- United States; United States. Congress -– Powers and duties; Land tenure -- Indian Country (New York (State)); Indian title -- New York (State).

*Issues: (1) Does Congress have any enumerated power to alter tribal sovereignty of Native American tribes? (2) If not, may Congress regulate virtually every aspect of tribes through ordinary legislation?

History: Petition for certiorari was filed on 10/09/2004. Petition was denied 1/10/05.

*Holding below: Opinion not yet located. First ruling below (D.C. Cir., 8/25/04): Court denies petition for initial hearing en banc of appeal from dismissal, for lack of subject matter jurisdiction, of claims to certain lands, including Governor's Island in New York, that are based on "aboriginal title." Second ruling below (N.Y., 9/20/04): Notice of appeal that does not include "appealable paper" within meaning of state law cannot be treated as initiating appeal and thus cannot be accepted for filing.

Chippewa Trading Co. v. Cox
Docket No. 04-395
Briefs

Subjects: Due process of law; Tobacco -- Taxation; Law -- Michigan; Chippewa Trading Co. (Mich.); Michigan. Tobacco Products Tax Act.

*Issues: (1) For purposes of comity, is state remedy plain, adequate, and complete when there is facial due process challenge in federal court to remedy provisions of state tobacco tax statute, and state officials admit in federal court to using procedural tactics to avoid decision on merits in state court? (2) In event state remedy is plain, adequate, and complete, may district courts decline on basis of comity to hear Indian claims against state officials for continuing pattern of seizure and forfeiture of inter-reservation Indian trade in tobacco, when relief requested includes prospective injunctive relief to end continuing violation of federal law, including Art. II of 1842 treaty with Chippewa, in which federal government promised exclusive application of federal law to Indian trade in return for ceded land?

History: Petition for certiorari was filed on 9/17/2004. Petition was denied on 11/15/04.

*Holding below: Chippewa Trading Co. v. Cox, 365 F.3d. 538, 6th Cir. Principles of comity warrant federal court abstention from Indian corporation's suit challenging constitutionality of Michigan Tobacco Products Tax Act, pursuant to which corporation's tobacco products not bearing tobacco tax stamps were seized by state during transport between Indian reservations, because "plain, speedy, and efficient remedy" for any constitutional shortcomings of state tax scheme is available in state courts.

Related News Stories: High court upholds tobacco tax decision (AP) 11/16/04.

First National Bank of Milaca v. Benjamin
Docket No. 04-228

Subjects: Mille Lacs County (Minn.); First National Bank of Milaca, Minn.; Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake);Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band); Minnesota; South Dakota; Boundary disputes; Non-members of a tribe; Business enterprises; Indian reservations.

*Issues: When tribe attempts to resurrect reservation that nonmembers justifiably believed long disestablished, by asserting sovereign authority over former reservation, can nonmember doing business within former reservation boundaries seek declaratory relief concerning those boundaries only when tribe has sought to enforce its regulations over that nonmember business?

History: Petition for certiorari was filed on 8/17/2004. Petition denied 11/01/04.

*Holding below: Mille Lacs County v. Benjamin, 361 F.3d. 460, 8th Cir. Bank seeking declaratory judgment determining legal status of Indian reservation boundaries did not establish injury in fact, but asserted only speculative harms based on tribe's assumed future intent to expand its jurisdictional reach within reservation, such as diminished value of bank's collateral stemming from tribe's assertion of regulatory authority over property in which bank holds security interest, and tribal enactments' impact on federal banking laws and Minnesota Uniform Commercial Code, and thus bank's suit was properly dismissed for lack of standing.

Mille Lacs County v. Benjamin
Docket No. 04-229
Briefs

Subjects: Mille Lacs County (Minn.); First National Bank of Milaca, Minn.; Minnesota Chippewa Tribe, Minnesota (Six component reservations: Bois Forte Band (Nett Lake);Fond du Lac Band; Leech Lake Band; Mille Lacs Band; White Earth Band); Minnesota; South Dakota; Boundary disputes; Indian reservations.

*Issues: Does Declaratory Judgment Act allow district court to deny standing to Mille Lacs County in reservation status controversy and circumvent declaratory judgment precedent of this court in Rosebud Sioux Tribe v. Kneip, 430 U.S. 584 (1977), squarely on point in every significant respect, involving same type of reservation status controversy of such compelling importance that this court has granted petitions for writs of certiorari seven times in last few decades to resolve similar disputes, and in process, can court also ignore that Mille Lacs Band, United States, and this court, nearly one century ago, specifically recognized that Mille Lacs Reservation no longer exists in United States v. Mille Lac Band of Chippewa Indians, 229 U.S. 498 (1913), when not single court has questioned that conclusion since that time?

History: Petition for certiorari was filed on 8/17/2004. Petition denied 11/01/04.

*Holding below: Mille Lacs County v. Banjamin, 361 F.3d. 460, 8th Cir. County seeking declaratory judgment determining legal status of Indian reservation boundaries presented no evidence that its ability to enforce state or local law on reservation has been usurped or even affected by tribe's alleged intentions to expand reach of tribal authority, or that it is in immediate danger of sustaining threatened injury traceable to action of tribe, and thus dismissal of county's suit for failure to establish standing is affirmed.

Related News Stories: Minn. Tribe Wins Another Round in Reservation Dispute (Indianz.com) 03/11

South Dakota v. Cummings
Docket No. 04-74
Briefs

Subjects: Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota; Suppression of evidence -- South Dakota; Traffic violations -- Off Indian reservations; Admissible evidence; Police pursuit driving -- On Indian reservations; South Dakota.

*Issues: Did South Dakota Supreme Court contravene this court's decision in Nevada v. Hicks when it held that deputy sheriff who observed tribal member committing crime off-reservation may not, as matter of federal law, pursue tribal member onto his reservation, detain him there, and take statement from him there?

History: Petition for certiorari was filed on 7/12/2004. Petition was denied on 10/18/04.

*Holding below: South Dakota v. Cummings, 2004 SD 56, 679 N.W.2d 484, Supreme Court of South Dakota. In absence of compact between Native American tribe and state, state police officer was without authority to pursue fleeing tribal member onto reservation in absence of warrant or tribal consent and, therefore, all evidence obtained after officer entered reservation was properly suppressed at tribal member's subsequent trial; language in Nevada v. Hicks, 533 U.S. 353, 69 U.S.L.W. 4528 (2001), to effect that nothing in relevant statutory scheme denies state authority to enter reservation for enforcement related to crimes committed off-reservation, is unavailing, given that state never effectively asserted jurisdiction over reservations within its borders, and does not provide affirmative authorization for state to extend its jurisdiction into reservation.

Related News Stories: Court: Deputy Had No Jurisdiction (Rapid City Journal) 04/23/04, South Dakota challenge to tribes rejected by high court (Indianz.com) 10/19/04, U.S. Supreme Court lets stand ruling on reservation jurisdiction (AP) 10/18/04.

Navajo Nation v. Krystal Energy Company, Inc.
Docket No. 04-45
Briefs

Subjects: Bankruptcy; Sovereign immunity -- Abrogation -- Navajo Nation, Arizona, New Mexico & Utah; Krystal Energy Co. (Ariz.).

*Issues: Do Sections 106(a) and 101(27) of Bankruptcy Code expressly and unequivocally waive sovereign immunity of Indian tribe?

History: Petition for certiorari was filed on 7/02/2004. Petition was denied on 10/5/04.

*Holding below: Krystal Energy Company v. Navajo Nation, 357 F.3d 1055, 9th Cir. Section 106(a) of Bankruptcy Code, which abrogates sovereign immunity of "governmental units," defined in Section 101(27) to include "other foreign or domestic governments," abrogates sovereign immunity of Indian tribes.

Related News Stories: Appeals Court Rules Agains Tribal Immunity (Indianz.com) 2/11/04

Medicine Blanket v. Rosebud Sioux Tribal Police Department
Docket No. 04-5163
Briefs

Subjects: Indian reservation police -- Rosebud Sioux Tribe of the Rosebud Indian Reservation, South Dakota; Police misconduct.

*Issues: not yet available

History: Petition for certiorari was filed on 6/30/2004. Petition was denied on 10/4/04.

*Holding below: Medicine Blanket v. Rosebud Sioux Tribal Police Department, 91 Fed.Appx. 533, (from the opinion) As to the merits, we affirm the grant of summary judgment because Medicine Blanket's claims challenge the conduct of tribal officers on a reservation, and it appears that this matter is the subject of on-going litigation by Medicine Blanket in the tribal court system. See In re Sac & Fox Tribe of Mississippi in Iowa/Meskwaki Casino Litigation, 340 F.3d 749, 763 (8th Cir.2003) (jurisdiction to resolve internal tribal disputes and interpret tribal constitutions and laws lies with Indian tribes and not in district courts).....

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

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. Petition was denied on 10/4/04.

Holding below: Steffler V. Cow Creek Band of Umpqua Tribe of Indian, 2004 WL 830080, 8th Cir. (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.

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

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, Court of Civil Appeals of Oklahoma, Third Division. 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. Petition was denied on 10/4/04.

*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

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. Petition was denied on 10/4/04.

*Holding below: Artichoke Joe's California Grand Casino V. Norton, 353 F.3d 712, 9th Cir. 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.

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