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Indian Law Bulletins  |  U.S. Supreme Court  |  Archives 2006-2007 Term

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Last updated: June 25, 2007

The 2006-2007 term has closed.

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Two Indian law-related cases and one non-Indian law case of importance to Native Americans have been decided by the U.S. Supreme Court in the 2006-2007 term.

Zuni Public School District, et al. v. Department of Education, et al.
Decided 4/17/07
Docket No. 05-1508
Briefs & Pleadings
Oral Argument Transcripts

Subjects: Zuni (N.M.). School District; Gallup-McKinley County Schools; Zuni Tribe of the Zuni Reservation, New Mexico; New Mexico; Government aid to education -- United States; Zuni Public School District 89; Gallup-McKinley County Public School District No. 1; Educational equalization -- New Mexico; Schools -- Finance -- New Mexico; Impact aid -- New Mexico; United States. Dept. of Education -- Officials and employees -- Powers and duties.

*Issues: (1) Does secretary of education have authority to create and impose his equalization formula under federal impact aid program over one prescribed by Congress and through this process certify New Mexico's operational funding for fiscal year 1999-2000 as "equalized," thereby diverting impact aid subsidies to state? (2) Is this one of rare cases in which this court should exercise its supervisory jurisdiction to correct plain error that affects all state school districts that educate federally connected children?

History: Petition for certiorari was filed on 5/24/2006. Petition was granted on 9/26/06. Argument was heard on 1/10/07. Decided 4/17/07.

*Holding below: Zuni Public School District No. 89. v. United States Department of Education, (en banc 437 F.3d 1289, en banc or 393 F.3d 1158 for previous), 10th Cir. Equally divided court affirms secretary of education's decision that State of New Mexico's funding for its public schools was "equalized" for year in question under 20 U.S.C. § 7709(b) and corresponding regulations at 34 C.F.R. § 222.162(a), thereby permitting state to offset its contributions to local school districts by at least part of federal grants to those districts under federal impact aid program.

Related News Stories: Funding challenge: School districts lose case (NewMexican) 4/19/07. Supreme Court rejects school districts' suit. (4KOBTV) 4/17/07. Statement about case from Tribal Education Departments National Assembly

Massachusetts v. EPA
Decided 4/17/07
Docket No. 05-1120
Oral Argument Transcripts

Subjects: United States. Environmental Protection Agency -- Powers and duties; Massachusetts; United States. Clean Air Act; Automobiles -- Motors -- Exhaust gas.

*Issues: (1) May EPA administrator decline to issue emission standards for motor vehicles based on policy considerations not enumerated in Section 202(a)(1)? (2) Does EPA administrator have authority to regulate carbon dioxide and other air pollutants associated with climate change under Section 202(a)(1)?

History: Petition for certiorari was filed on 3/02/2006. Petition was granted on 6/26/06. Argument was heard on 11/29/06. Decided 4/02/07.

*Holding below: Massachusetts v. EPA, D.C. Circuit, 415 F.3d 50 Under Section 202(a)(1) of Clean Air Act, which directs Environmental Protection Agency administrator to regulate emissions that "in his judgment" "may reasonably be anticipated to endanger public health or welfare," administrator properly exercised his discretion in denying petition by several states calling for rulemaking to regulate carbon dioxide and three other greenhouse gas emissions--methane, nitrous oxide, and hydrofluorocarbons--from new motor vehicles.

Related News Stories: High Court faults EPA inaction on emissions (Washington Post) 4/3/07.

BP America v. Burton, et al.
Decided 1/12/07
Docket No. 05-669
Briefs & Pleadings
Oral Argument Transcripts

Subjects: Oil and gas leases -- Payment; Oil and gas leases -- Law and legislation -- United States; United States. Dept. of the Interior; Amoco Production Company; Coalbed methane; United States. Administrative Procedure Act; Limitation of actions.

*Issues: Does limitations period in 28 U.S.C. § 2415(a) apply to federal agency orders requiring payment of money claimed under lease or other agreement?

Holding: (from USLW) Administrative payment orders issued by the Interior Department's Minerals Management Service assessing royalty underpayments on oil and gas leases are not covered by the general six-year statute of limitations for government contract actions set out in 28 U.S.C. § 2415(a).

History: Petition for certiorari was filed on 11/22/2005. Petition was granted on 4/17/06. Argument was heard on 10/4/06. Decided 12/11/06.

*Holding below: Amoco Production Co. v. Watson, D.C. Cir., 410 F.3d 722, D.C. Cir. Department of Interior reasonably interpreted Mineral Leasing Act and its own regulations when it adopted rules for valuation, for royalty computation purposes, of natural gas extracted by lessees from government property that obligate lessees to put gas in "marketable condition at no cost to" government by, inter alia, removing impurities from gas, including removal of excess carbon dioxide from coalbed methane gas, thereby forbidding producers who remove excess carbon dioxide from deducting cost of doing so from gross proceeds on which royalties are based, and requiring producers selling untreated methane at lower price to add to their gross proceeds costs incurred by purchasers of methane at wellhead in removing excess carbon dioxide after transporting it to treatment plant; government agency's administrative compliance order demanding additional royalties owed under Mineral Leasing Act and its regulations, defiance of which incurs notice of noncompliance and subsequent civil penalties, is not "action for money damages" initiated by filing "complaint," and thus limitations period of 28 U.S.C. § 2415(a) is inapplicable.

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No petitions for certiorari were granted and were carried over to the 2007-2008 term.

 

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Petitions for certiorari filed and carried over to the 2007-2008 term.

Gros Ventre Tribe v. United States
Docket No. 06-1672
Briefs & Pleadings

Subjects: Coal mines and mining -- Montana; Groundwater -- Pollution; Arsenic -- Environmental aspects; Fort Belknap Indian Community of the Fort Belknap Reservation of Montana; United States. Bureau of Land Management; Trusts and trustees -- United States; Responsibility -- United States; United States. Federal Land Policy and Management Act of 1976; United States. Administrative Procedure Act.

*Issues: not yet available from USLW

History: Petition for certiorari was filed on 6/14/2007.

*Holding below: (from Westlaw) Gros Ventre Tribe v. United States, 469 F.3d 801, The Court of Appeals, Tallman, Circuit Judge, held that:
(1) government did not owe general trust obligation to Tribes to take Indian interests into account regarding mining operations that would support common law breach of trust claim;
(2) government did not have specific trust obligation based on its treaties and agreements with tribes;
(3) government did not owe trust responsibilities regarding third-party use of non-Indian resources;
(4) government had no statutory duty to take discrete nondiscretionary actions under Federal Land Policy and Management Act (FLPMA) that could support failure to act claim under Administrative Procedure Act (APA); and
(5) Tribes did not suffer injury for purposes of standing as result of record of decision regarding mining operations that was subsequently vacated.
Affirmed.

Confederated Tribes and Bands of the Yakama Nation v. Confederated Tribes of the Colville Indian Reservation
Docket No. 06-1588

Subjects: Fishing rights -- Wenatchi Indians -- Icicle Creek (Wash.); Fishing rights -- Confederated Tribes of the Colville Reservation, Washington; Fishing rights -- Confederated Tribes and Bands of the Yakama Nation, Washington; Fishing -- Off Indian reservations -- Washington (State).

*Issues:(1) Does Section 24 of Restatement (Second) of Judgments use pragmatic transactional test for determining whether party's claim is precluded by res judicata? (2) Is opinion of court below, that Colville Tribe's present claim in this case regarding off-reservation Indian fishing rights is not barred by res judicata, in direct conflict with Restatement (Second) and rulings of other circuit courts? (3) Are respondents judicially estopped from assuming factual positions in their present claim for off-reservation Indian fishing rights that are inconsistent with undisputed facts of their previously litigated claim, thereby giving them full and fair opportunity to litigate this claim in prior suit?

History: Petition for certiorari was filed on 5/29/2007.

*Holding below: United States v. Oregon, 470 F.3d 809, Res judicata does not bar Confederated Tribes of Colville Indian Reservation from asserting claim of its Wenatchi Constituent Tribe to fishing rights at Wenatshapam Fishery on Icicle Creek, which is tributary to Columbia River, because, although district court in earlier litigation over off-reservation fishing rights in area dismissed Colville's intervention upon finding that it was not successor tribe to treaty rights at issue, requisite identity of claims between that earlier intervention attempt and present injunction hearing is absent.

 

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Petition for certiorari was denied in 25 Indian law cases and two cases have been dismissed under Rule 46 this term.

LeBeau v. United States
Docket No. 06-1427
Briefs & Pleadings

Subjects: United States. Mississippi Sioux Tribes Judgment Fund Distribution Act of 1998; Judgments; United States. "Little" Tucker Act; Breach of trust -- United States.

*Issues:(1) Does General Savings Statute, 1 U.S.C. § 109, permit circuit court to affirm liability under federal statute but deny damages based upon subsequent amendment of liability statute? (2) May circuit court refuse to apply General Savings Statute and prior opinions of this court when refusal denies breach of trust damages to class of Native Americans?

History: Petition for certiorari was filed on 4/24/2007. Petition was denied on 6/25/07.

*Holding below: LeBeau v. United States 474 F.3d 1334, Although government breached trust responsibility, created in 1972 Distribution Act, between United States and lineal descendants of Indian tribe who were eligible to share in Mississippi Sioux Tribes Judgment Fund by unreasonably delaying partial distribution in 1982, and full distribution in 1987, of lineal descendants' share of judgment fund, plaintiff lineal descendants are not entitled to recover damages for this breach because Congress, acting within its proper authority before any distribution to lineal descendants occurred, reallocated lineal descendants' share of fund when it enacted 1998 Mississippi Sioux Tribes Judgment Fund Distribution Act, and thereby extinguished government liability for its breach of trust; although each lineal descendant had right to timely distribution of per capita share of judgment fund, such right was not vested and was always subject to modification by Congress until distribution of shares occurred.

Murphy v. Oklahoma
Docket No. 05-10787
Briefs & Pleadings

Subjects: Criminal jurisdiction -- Oklahoma; Servitudes -- Defined -- Indian Country (Okla.); Indian Country (Okla.) -- Defined; Indian allotments -- Oklahoma; Muscogee (Creek) Nation, Oklahoma -- Boundaries; Offenders with mental disabilities -- Oklahoma.

*Issues: not available from USLW

History: Petition for certiorari was filed on 5/03/2006. Petition was denied on 6/4/07.

*Holding below: Murphy v. State of Oklahoma , 124 P.3d 1198, Corut of Criminal Appeals, Oklahoma. (from Westlaw) The Court of Criminal Appeals, Lumpkin, V.P.J., held that:
(1) state's interest in road where murder occurred on land allotted to Indian was an easement or right-of-way, not fee simple, for purposes of determining whether the murder occurred in Indian country and state had criminal jurisdiction;
(2) as a matter of first impression, one-twelfth interest that Indian citizen owned in mineral estate did not qualify the property as an Indian allotment;
(3) the road was not shown to be part of a Creek Nation reservation or a dependent Indian community; and
(4) defendant provided sufficient evidence to raise a fact question on mental retardation claim.
Application granted in part and denied in part; case remanded.
Questions answered.

Wright v. Colville Tribal Enterprise Corporation
Docket No. 06-1229
Briefs & Pleadings

Subjects: Race discrimination -- Confederated Tribes of the Colville Reservation, Washington; Non-Indians; Sovereign immunity -- Corporations, Government -- Officials and employees -- Confederated Tribes of the Colville Reservation, Washington; Colville Tribal Enterprise Corporation; Colville Tribal Services Corporation.

*Issues:Does tribal sovereignty immunize for-profit corporations created under tribal law from liability for state law torts committed outside tribe's reservation?

History: Petition for certiorari was filed on 3/07/2007. Rule 46 Dismissal on 5/11/2007.

*Holding below: Wright v. Colville Tribal Enterprise Corporation
147 P.3d 1275, Supreme Court of Washington. Absent express waiver of immunity by tribe or congressional abrogation, tribal sovereign immunity immunizes tribal corporation and its employees in their official capacity from suit if corporation is owned by tribe and was created under tribal laws, and thus corporation created under tribal law and owned entirely by tribe, its wholly owned subsidiary, and their agent, acting in his official capacity, are immune from suit, alleging racial discrimination and other causes of action, brought against them by employee who worked on off-reservation project.

Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate
Docket No. 06-1202
Briefs & Pleadings

Subjects: Native Hawaiian students.; Discrimination in education -- Hawaii; Kamehameha Schools -- Admission; Affirmative action programs; Private schools -- Hawaii; Equality before the law -- United States; Civil rights -- United States.

*Issues:(1) Is respondents' racially exclusionary admissions policy subject to same strict scrutiny applied under Title VI of 1964 Civil Rights Act, or instead subject to marginally less demanding scrutiny applied under Title VII of that statute? (2) Does respondents' racially exclusionary admissions policy satisfy any level of scrutiny when children of wrong race are foreclosed from all consideration, such that policy acts as absolute and perpetual bar to admission of those children? (3) Could Congress, without changing text of Section 1981 or otherwise indicating by legislation that it has repudiated "fundamental national public policy" against racial discrimination in private education, be said to have specifically intended to authorize respondents to operate system of racially segregated schools?

History: Petition for certiorari was filed on 3/01/2007. Rule 46 Dismissal on 5/11/2007.

*Holding below: Doe v. Kamehameha Schools/Bernice Pauahi Bishop Estate, 470 F.3d. 827 9th. Cir. Private, nonsectarian school's admissions preference for children with native Hawaiian ancestry, which is alleged to be racially discriminatory in violation of 42 U.S.C. § 1981, is evaluated under test for assessing validity of affirmative action employment plans under Title VII of 1964 Civil Rights Act, adjusted to take into account school's focus on broad goals of society as whole to assure that traditionally underachieving groups of every race and ethnicity will be prepared for citizenship and for workplace; preference, which effectively bars virtually all children with no Hawaiian ancestry, seeks to redress native Hawaiians' lower academic achievement compared to other ethnic groups, does not unnecessarily tread on rights of other groups, who have ample alternative academic opportunities, and will remain in place only as long as necessary to remedy current educational effects of past private and government-sponsored discrimination and social and economic deprivation, and thus is valid affirmative action measure; also supporting preference is Congress's pronouncement of "special relationship" between United States and Hawaii, as well as various statutes specifically affirming need for special educational opportunities for native Hawaiian students.

Davidson v. Mohegan Tribal Gaming Authority
Docket No. 06-9344

Subjects: Employees, Dismissal of -- Mohegan Indian Tribe of Connecticut; Sovereign immunity -- Mohegan Indian Tribe of Connecticut; Indian gaming -- Mohegan Indian Tribe of Connecticut; Mohegan Indian Tribe of Connecticut. Mohegan Discriminatory Employment Practices Ordinance; Jurisdiction -- New Haven (Conn.).

*Issues: not yet available from USLW

History: Petition for certiorari was filed on 2/03/2007. Petition was denied on 4/16/07.

*Holding below: (from Westlaw) Davidson v. Mohegan Tribal Gaming Authority, 903 A.2d 228, Apellate Court of CT. The Appellate Court held that trial court lacked subject matter jurisdiction over action. Affirmed.

Cobell v. Kampthorne
Docket No. 06-868
Briefs & Pleadings

Subjects: Individual Indian monies (IIM) accounts; United States. Dept. of the Interior; United States. Dept. of the Treasury; Trusts and trustees -- Accounting; Fiduciary accountability -- United States. Dept. of the Interior.

*Issues: Did court of appeals err in holding--in conflict with Liteky v. United States and decisions of other circuits--that it could order district judge recused and case reassigned under 28 U.S.C. §§ 455(a) and 2106 based on its reversal of some of district judge's rulings in this case?

History: Petitions for certiorari was filed on 12/19/2006. Petitions were denied on 3/26/07.

*Holding below: Cobell v. Kempthorne, 455 F.3d 317. DC Cir. Eight reversals of district court's rulings in nearly decade-old Indian land trust litigation, when combined with district judge's issuing of orders without hearings, participating in evidence-gathering, and leveling of serious charges against defendant Department of Interior and its officials that not only are unrelated to issue before court but go beyond criticizing Interior Department for its serious failures as trustee and condemn department as institution, warrant reassignment of case to another judge on ground that current judge's hostility to department is so extreme as to display clear inability to render fair judgment within meaning of Liteky v. United States, 510 U.S. 540 (1994).

Cobell v. Kampthorne
Docket No. 06-867
Briefs & Pleadings

Subjects: Individual Indian monies (IIM) accounts; United States. Dept. of the Interior; United States. Dept. of the Treasury; Trusts and trustees -- Accounting; Fiduciary accountability -- United States. Dept. of the Interior.

*Issues: (1) Did court of appeals, contrary to principles recently reaffirmed in Purcell v. Gonzalez, 127 S.Ct. 5 (U.S. 2006), fail properly to accord deference to factual findings made by district court in granting petitioners' motion for injunctive relief? (2) Did court of appeals err when it held that injunction should issue only when movant "would necessarily suffer harm" without injunction, when this court and other circuits have required movant to show only likelihood that harm would result in absence of injunction? (3) Did court of appeals err in holding, contrary to decisions of this court and other circuits, that district court was required to defer to respondents' decisions with respect to if, how, and when to comply with their unconditional fiduciary obligations?

History: Petitions for certiorari was filed on 12/19/2006. Petitions were denied on 3/26/07.

*Holding below: District court abused its discretion when it ordered injunctive relief requiring Department of Interior to disconnect many of its computer systems from Internet and internal computer networks to protect integrity of individual Indian trust data residing on Interior's computers, given Native American plaintiffs' failure to show that they would necessarily suffer harm without injunction, district court's seeming disregard of harm injunction would cause to Interior Department and those relying on its services, and district court's failure to explain how extensive hobbling of Interior Department's information technology system would further public interest.

Jones v. Salt River Pima-Maricopa Indian Community
Docket No. 06-966

Subjects: Standing to sue; United States. Constitution. 11th Amendment; Sovereignty -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona.

*Issues: (1) Are federally recognized tribes sovereign? (2) Can elected officials be held accountable for enacting unconstitutional legislation? (3) Do service of complaint by registered mail and service of summons by certified mail satisfy constitutional protections?

History: Petition for certiorari was filed on 1/9/2007. Petition was denied on 3/19/07.

*Holding below: Jones v. Salt River Pima-Maricopa Indian Community, 9th. Cir. Court of Appeals (unpublished). District court properly dismissed former tribal employee's complaint against various federal defendants for lack of standing, against state defendants because his claims are barred by 11th Amendment, and against tribal defendants because he failed to serve complaint and summons in accordance with Fed.R.Civ.P. 4.

New Mexico v. Del E. Romero
Docket No. 06-765
Briefs & Pleadings

Subjects: Assault and battery -- New Mexico; Taos (N.M.); Indian Country (New Mexico) -- Defined; Jurisdiction -- New Mexico; Tribal members -- Pueblo of Taos, New Mexico; Jurisdiction -- New Mexico.

*Issues:(1) Did New Mexico Supreme Court misinterpret and misapply exclusive federal definition of dependent Indian community in 18 U.S.C. § 1151(b) and interpreted in unanimous opinion, Alaska v. Native Village of Venetie Tribal Gov't, 522 U.S. 520 (1998), for purposes of determining federal criminal jurisdiction, when New Mexico Supreme Court concluded: (a) alleged crimes committed by Indian on private, fee simple lands within original exterior boundaries of Pueblo land grant in which all Indian and United States title had been extinguished pursuant to 1924 Pueblo Lands Act satisfied federal set-aside requirement of land for use and enjoyment of Indian community; and, (b) federal superintendence requirement of Venetie was satisfied because alleged crimes occurred on lands located within original exterior boundaries of Pueblo land grant even though no evidence of federal superintendence over lands was established? (2) Did New Mexico Supreme Court create intolerable jurisdictional quagmire when no federal or state criminal jurisdiction may be invoked because certain lands within original exterior boundaries of Pueblo land grant are effectively prosecution-free zones?

History: Petition for certiorari was filed on 11/28/2006. Petition was denied on 3/5/07.

*Holding below: New Mexico v. Romero, 140 N.M. 299, NM Supreme Court. Privately owned lands within exterior boundaries of Indian pueblos are "dependent Indian communities," and are thus Indian country, within meaning of 18 U.S.C. § 1151(b), and therefore state does not have jurisdiction to prosecute alleged crimes that occurred there.

Related News Stories: State denied jurisdiction in Indian Country (Free New Mexican) 3/5/07

In re Jones
Docket No. 06-810

Subjects: United States. Constitution; Employees, Dismissal of -- Salt River Pima-Maricopa Indian Community of the Salt River Reservation, Arizona; United States. Indian Citizenship Act; United States. Indian Reorganization Act; United States. Court of Appeals (9th Circuit) -- Workload.

*Issues: Do internal integrity and national security of U.S. Constitution, United States, and states of union take precedence over Ninth Circuit's workload?

History: Petition for certiorari was filed on 12/28/2006. Petition denied on 2/20/07.

*Holding below: (unpublished, D. Ariz.) Action by employee who lost his job with Indian tribe, against members of U.S. House and Senate representing Arizona, state of Arizona, and governor of Arizona, alleging violation of employee's constitutional rights, in manner not ascertainable from complaint but apparently due to effect of certain laws, including Indian Citizenship Act and Indian Reorganization Act, allegedly enacted by House and Senate defendants, is dismissed for lack of standing and on basis of speech or debate clause, absolute immunity, and sovereign immunity; employee's motion for summary judgment against defendant Indian tribe and certain tribal members is denied because no such defendant was properly served with complaint.

DuMarce v. Kempthorne
Docket No. 06-908

Subjects: Trusts and trustees -- United States; United States. Sisseton-Wahpeton Sioux Act of 1984; Conveyancing -- Sisseton-Wahpeton Oyate of the Lake Traverse Reservation, South Dakota -- Members; United States. Little Tucker Act.

*Issues: (1) Does government acting as trustee to protect Indian lands from improvident disposition have fiduciary duties equivalent to those of other trustees as imposed by common law? (2) Does consolidation of cases permit appellate court to bind appellee to disposition of appeal when appellant failed to appeal decision as to that appellee and failed to raise appealed argument in appellee's action at district court level?

History: Petition for certiorari was filed on 12/28/2006. Petition denied on 2/20/07.

*Holding below: DuMarce v. Scarlett, 446 F.3d 1294, Fed. Cir. Claim that provision of 1984 Sisseton-Wahpeton Sioux Act, barring tribal members' conveyance of small tracts of land by devise or intestacy, effected taking of Indian land without just compensation is barred by six-year statute of limitations of Little Tucker Act, 28 U.S.C. § 2401(a), claim having been filed 14 years after its accrual; although district court's denial of government's motion for summary judgment on statute of limitations grounds was rendered prior to consolidation of one plaintiff's case with that of her sister, district court's decision pertains not only to plaintiff but, following consolidation, to her sister as well; United States fulfilled its fiduciary duty to tribal member when, upon 1987 death of her father, it informed her that, under Section 5 of 1984 Sisseton-Wahpeton Sioux Act, her father's land would escheat to tribe because it was less than two and one-half acres, and government's failure to inform tribal member of potential cause of action for Fifth Amendment taking did not breach its fiduciary duty.

Allen v. Gold County Casino
Docket No. 06-8562
Briefs & Pleadings

Subjects: Employees, Dismissal of -- Gold Country Casino (Calif.); Sovereign immunity -- Berry Creek Rancheria of Maidu Indians of California; Sovereign immunity -- Gold Country Casino (Calif.); Government agencies -- Tribes -- Defined.

*Issues: not yet available from USLW

History: Petition for certiorari was filed on 12/22/2006. Petition was denied on 2/20/07.

*Holding below: (from Westlaw) Allen v. Gold Country Casino,
464 F.3d 1044, 9th Cir. The Court of Appeals, Canby, Circuit Judge, held that:
(1) casino acted as arm of tribe, and thus was entitled to tribal sovereign immunity, and (2) casino did not waive tribal sovereign immunity. Affirmed in part, reversed in part, and remanded.

Burgess v. Watters
Docket No. 06-8943
Briefs & Pleadings

Subjects: Sex offenders -- Members -- Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; Criminal actions arising on Indian reservations -- Lac du Flambeau Band of Lake Superior Chippewa Indians of the Lac du Flambeau Reservation of Wisconsin; United States. Public Law 280; Habeas corpus; Jurisdiction -- Wisconsin.

*Issues: not yet available from USLW

History: Petition for certiorari was filed on 1/17/2007. Petition was denied on 2/20/07.

*Holding below: (from Westlaw) Burgess v. Watters, 467 F.3d 676, 9th Cir. The Court of Appeals, Wood, Circuit Judge, held that Wisconsin Supreme Court did not unreasonably apply clearly established federal law in determining that State had power to involuntarily commit enrolled member of Indian tribe as sexually violent person under civil jurisdiction conferred by Congress on States. Affirmed.

Burrell v. Armijo
Docket No. 06-721
Briefs & Pleadings

Subjects: Farms -- On Indian reservations -- Pueblo of Santa Ana, New Mexico; Sovereign immunity -- Pueblo of Santa Ana, New Mexico -- Officials and employees; Leases -- Pueblo of Santa Ana, New Mexico; Race discrimination -- Pueblo of Santa Ana, New Mexico.

*Issues: Did Tenth Circuit properly dismiss Pueblo of Santa Ana based on tribal sovereign immunity?

History: Petition for certiorari was filed on 11/21/2006. Petition denied on 1/16/07.

*Holding below: Burrell v. Armijo, 456 F.3d 1159, 10th Cir. Indian tribe is entitled to sovereign immunity from suit by non-Indian lessees of tribal farmland who sued both tribe and individual tribal officials who allegedly ran lessees off their farm, stole their crops, terminated their lease, and discriminated against them on account of their race; accepting allegations in complaint as true, lessees have sufficiently pled that individual tribal officials acted outside their official authority and thus such officials are not entitled to sovereign immunity from lessees' claims under 42 U.S.C. §§ 1981 and 1985.

Phelps Dodge Corp. v. San Carlos Apache Tribe
Docket No. 06-333

Subjects: Water rights -- San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Gila River (N.M. and Ariz.); San Carlos Indian Irrigation Project (U.S.); Water rights -- Arizona.

*Issues: Did Arizona Supreme Court err when it found that claim preclusion did not bar San Carlos Apache Tribe from seeking additional rights to waters from Gila River's tributaries when tributaries were within geographic scope of Globe Equity adjudication in which United States sought determination of all of tribe's rights to waters of tributaries and when Globe Equity parties did not split their claims to tributaries through express and clear statement in consent decree?

History: Petition for certiorari was filed on 9/05/2006. Petition denied 1/8/07.

*Holding below: In re General Adjudication of All Rights to Use Water in Gila River System and Source, 212 Ariz. 64, Supreme Court of Arizona. Claims advanced by San Carlos Apache Tribe in interlocutory appeal from order issued in Gila River general stream adjudication are precluded, to extent that tribe claims additional water from Gila River mainstream, by consent decree entered in 1935 by federal district court in Arizona, but claims to water from Gila tributaries are not precluded.

San Carlos Apache Tribe v. Arizona
Docket No. 06-173
Briefs & Pleadings

Subjects: Water rights -- San Carlos Apache Tribe of the San Carlos Reservation, Arizona; Gila River (N.M. and Ariz.); San Carlos Indian Irrigation Project (U.S.); Water rights -- Arizona.

*Issues: (1) When United States, as trustee for San Carlos Apache Tribe, and Apache Tribe, on its own behalf, were required by this court to adjudicate all tribe's federal reserved, aboriginal, and other water rights in Arizona's general stream adjudication under McCarran Amendment, 43 U.S.C. § 666, and when opposing claimants in general stream adjudication raised affirmative defense of res judicata in motions for summary judgment, arguing that previous federal consent decree on Gila River precluded United States and tribe from adjudicating water rights to Gila River mainstream for Apache Reservation, did Arizona Supreme Court err when it assumed existence of privity and affirmed trial court's decision on res judicata grounds, concluding as "matter of federal law" that comity compelled Apache Tribe to present its defense to res judicata in federal district court that entered prior consent decree? (2) Does it violate due process and equal protection clauses of Fifth and 14th Amendments to apply affirmative defense of res judicata to preclude United States, as trustee for federally recognized Indian tribe, and tribe, on its own behalf, from adjudicating certain federal reserved, aboriginal. and other water rights in state general stream adjudication conducted under McCarran Amendment, without allowing Indian tribe to present its defenses to res judicata in state forum in which it was raised?

History: Petition for certiorari was filed on 8/01/2006. Petition denied 1/8/07.

*Holding below: In re the General Adjudication of all Rights to use Water in the Gila River System , 212 Ariz. 64, Supreme Court of Arizona. Claims advanced by San Carlos Apache Tribe in interlocutory appeal from order issued in Gila River general stream adjudication are precluded, to extent that tribe claims additional water from Gila River mainstream, by consent decree entered in 1935 by federal district court in Arizona, but claims to water from Gila tributaries are not precluded.

Oneida Indian Nation of New York v. Peterman
Docket No. 06-470

Subjects: Indian gaming -- Oneida Nation of New York; Gambling on Indian reservations -- New York (State); Sovereign immunity -- Oneida Nation of New York; New York (State). Governor -- Powers and duties; Intergovernmental agreements -- Oneida Nation of New York; Parties to actions.

*Issues: Is rule adopted by New York courts, that they may adjudicate Indian tribe's interests in its federally approved gaming compact in tribe's absence because tribe could waive sovereign immunity and appear as party in suit, preempted by federal law because it conflicts both with federally protected sovereign immunity and with federal interest in tribal economic development and self-sufficiency through regulated tribal gaming.

History: Petition for certiorari was filed on 10/02/2006. Petition was denied on 12/4/06.

*Holding below: Peterman v. Pataki, 21 A.D.3d 1387, N.Y. Apellate Div. In taxpayers' action challenging authority of governor to execute, without legislative authorization, compact with Native American tribe that permits tribe to operate casinos under federal Indian Gaming Regulatory Act, lower court's denial of tribe's motion to dismiss complaint is affirmed for reasons stated by that court, which held (i) that tribe, which entered special appearance solely to contest court's jurisdiction, is not indispensable party, (ii) that, even assuming that tribe has standing to raise issue of justiciability, case clearly presents justiciable controversy, and (iii) that, because governor's action clearly violated separation of powers recognized by state constitution, compact is invalid.

Naftaly v. Keweenaw Bay Indian Community
Docket No. 06-429
Briefs & Pleadings

Subjects: Keweenaw Bay Indian Community, Michigan; Real property -- Taxation -- Michigan; Michigan. General Property Tax Act.

*Issues: (1) Does 1854 Treaty with Chippewa at LaPointe show necessary congressional intent to make lands freely alienable? (2) Do Indian treaty canons of construction allow courts to resolve on summary judgment factual issues about which experts disagree?

History: Petition for certiorari was filed on 9/21/2006. Petition was denied on 11/27/06.

*Holding below: Keweenaw Bay Indian Community v. Naftaly, 452 F.3d 514, 6th Cir. Provision of Treaty with Chippewa, Sept. 30, 1854, 10 Stat. 1109, stating that Indians "shall not be required to remove from the homes hereby set apart for them," although ambiguous, must be read in favor of tribe and its members, against backdrop of Indian sovereignty doctrine and notion that American Indian tribes enjoy quasi-sovereignty, and in favor of inference that supports treaty's purpose of providing permanent home for Chippewa Indians--purpose that would be weakened by state's interpretation sanctioning involuntary alienation of tribe's or members' land through tax sales--and thus treaty is properly interpreted as preventing involuntary alienation of, and thus taxation of, reservation lands held in fee simple by tribe or its members; treaty is not federal statute or act of Congress and thus cannot furnish requisite unmistakably clear congressional intent to allow state taxation of reservation lands; state waived any argument that 1854 statute authorizing president to negotiate with Chippewa evidenced such intent, and no reservation land at issue was ever allotted under Dawes Act or 1922 statute authorizing secretary of interior to allot reservation lands under treaties when president had such power, thus eliminating those statutes as source of such intent.

Narragansett Indian Tribe v. Rhode Island
Docket No. 06-414
Briefs & Pleadings

Subjects: Sales tax -- Rhode Island; Use tax -- Rhode Island; Cigarette sellers -- Narragansett Indian Tribe of Rhode Island; Jurisdiction -- United States; District courts -- United States; Sovereignty -- Narragansett Indian Tribe of Rhode Island; Warrants (Law) -- On Indian reservations; Searches and seizures -- Rhode Island.

*Issues: Did First Circuit err in holding, in divided en banc opinion and in direct conflict with precedents of this court, other federal courts of appeals, and state supreme courts, that federal statute's conferral of "jurisdiction" over Indian lands, but not over tribe as sovereign, impliedly abrogates tribal government's sovereign immunity and thus empowers state judge to authorize state police to execute search warrant against tribe, seize funds and property belonging to tribal government, and arrest tribal officials acting in their official capacities?

History: Petition for certiorari was filed on 9/21/2006. Petition was denied on 11/27/06.

*Holding below: Narragansett Indian Tribe v. State of Rhode Island and Providence Plantations et al., 449 F.3d 16, 1st Cir. Rhode Island Indian Claims Settlement Act, 25 U.S.C. §§ 1701-1716, which declared, consistent with underlying settlement agreement, that certain land returned to tribe in settlement of its land claims "shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island," abrogated tribe's sovereign immunity from enforcement of state law and thus authorized state law enforcement officers, acting under otherwise valid search warrant, to enter such tribal land, seize tribe's inventory of unstamped, untaxed cigarettes, and arrest tribal members involved in operating tribal smoke shop in violation of state law.

Delaware Nation v. Pennsylvania
Docket No. 06-364
Briefs & Pleadings

Subjects: Delaware Indians; Extinguishment of Indian title -- Delaware Indians; Pennsylvania; Bucks County (Pa.); Delaware Nation, Oklahoma (formerly the Delaware Tribe of Western Oklahoma); Land tenure -- Delaware Indians.

*Issues: (1) Does 1799 Indian Non-Intercourse Act apply to land held in fee by federally recognized Indian tribe? (2) Was court of appeals' finding of waiver as to petitioner's aboriginal rights claim improper and in contravention of important rules of pleading and of federal law and policy that protect federally recognized Indian tribes asserting claims to tribal land?

History: Petition for certiorari was filed on 9/12/2006. Petition was denied on 11/27/06.

*Holding below: Deleware Nation v. Pennsylvania, 446 F.3d 410, 3rd. Cir. Although Thomas Penn's 1737 extinguishment of any aboriginal rights held by Delaware Nation to certain land in Northampton County, Pennsylvania, was fraudulent, it is not justiciable because it was accomplished by sovereign authority; Delaware Nation waived contention that Penn lacked sovereign authority, and thus could not extinguish tribe's aboriginal title, by failing to raise it before district court; although sovereign issued two land patents for such land to tribal chief subsequent to 1737 extinguishment of aboriginal title, such grant of land was to chief in his individual capacity, and not as representative of tribe, and thus did not confer on tribe fee title to land.

Walton v. Tesuque Pueblo
Docket No. 06-361
Briefs & Pleadings

Subjects: Dealers (Retail trade) -- Licenses; Non-Indians; Sovereign immunity -- Pueblo of Tesuque, New Mexico; Jurisdiction -- United States; United States. Indian Civil Rights Act; Tesuque Pueblo Flea Market.

*Issues: (1) Does Santa Clara Pueblo v. Martinez preclude federal review, other than habeas review pursuant to 25 U.S.C. § 1303, of deprivations without due process of law by Indian tribes of liberty or property of non-tribal persons? (2) On Fed.R.Civ.P. 12(b)(1) challenge to habeas jurisdiction under Section 1303, may hotly disputed facts be resolved against party opposing challenge absent fact inquiry? (3) Are provisions of ISDEAA (i) that require waiver of sovereignty defenses in insurance coverage for benefit of third parties aggrieved by ISDEAA-funded agencies, (ii) that require laws, policies, and procedures of contractor to provide for administrative due process or its equivalent, and (iii) that require forum for grievances brought by program beneficiaries, operative?

History: Petition for certiorari was filed on 9/11/2006. Petition was denied on 11/13/06.

*Holding below: Walton v. Tesuque Pueblo, 443 F.3d. 1274, 10th Cir. Under Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), which held that Indian Civil Rights Act neither authorizes maintenance of suits against Indian tribe nor constitutes waiver of tribal sovereign immunity, district court lacked jurisdiction over non-habeas corpus claims against tribe by non-Indian individual who alleged that tribe violated state and federal law when it revoked his flea market vendor's permit; because plaintiff has not demonstrated unavailability of tribal forum to hear his dispute regarding revocation of his vendor's permit, exception to Santa Clara Pueblo created by Dry Creek Lodge v. Arapahoe and Shoshone Tribes, 623 F.2d 682 (10th Cir. 1980), is inapplicable; although federal courts do have jurisdiction under ICRA to entertain habeas corpus proceedings, 25 U.S.C. § 1303, plaintiff's expulsion from tribal land does not constitute "detention" as that term is used in Section 1303, and thus district court properly dismissed plaintiff's habeas claim; although tribe waives its sovereign immunity with respect to suits arising out of its performance of contractual duties under self-determination contracts entered into under Indian Self-Determination and Education Assistance Act, plaintiff was not party to self-determination contract and his claims do not arise from any such contract, and thus ISDEAA is not source of jurisdiction for his claims.

Means v. Navajo Nation
Docket No. 05-1614
Briefs & Pleadings

Subjects: Oglala Sioux Tribe of the Pine Ridge Reservation, South Dakota -- Members; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe; Equality before the law -- United States; Due proecess of law -- United States; Criminal jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe.

*Issues: (1) Can Congress lawfully vest Indian Nations, which are not subject to U.S. Constitution, with criminal jurisdiction over nonmember Indians who are citizens of United States--but not over nonmember non-Indians--without violating equal protection and due process clauses of Fifth Amendment? (2) Can Indian tribes exercise criminal jurisdiction over nonmembers, but only as long as they are Indians, without violating equal protection and due process provisions of Indian Civil Rights Act? (3) Can Indian tribes exercise criminal jurisdiction over nonmember Indians, who are citizens of United States, outside of Constitution without violating due process of law? (4) Did Congress, by amending Indian Civil Rights Act to provide Indian tribes with criminal jurisdiction over nonmember Indians, abrogate Navajo Treaty of 1868, which explicitly provides for federal jurisdiction over intertribal offenses? (5) Does Congress possess power to grant criminal jurisdiction to Indian tribes over nonmembers under Indian commerce clause, art. 1, § 8, cl. 3, even though tribes are not bound by Constitution?

History: Petition for certiorari was filed on 6/16/2006. Petition was denied on 10/10/06.

*Holding below: Means v. Navajo Nation, 432 F.3d 924, 9th Cir. Under 1990 amendments to Indian Civil Rights Act, Indian tribe may exercise its inherent sovereign judicial power in criminal cases, for crimes committed on tribe's reservation, against anyone of Indian ancestry who is also Indian by political affiliation, which at very least includes anyone who is enrolled member of any tribe but does not include anyone who is merely racially Indian; equal protection clause is not violated by permitting tribe to prosecute its own members and members of other tribes, but not anyone else, for crimes committed on reservation, because Indian tribal identity is political rather than racial, and recognizing criminal jurisdiction of tribal courts over Indians enrolled in other tribes, who might not otherwise be subject to any criminal jurisdiction, is rationally related to Indian self-government in area in which rapid and effective tribal response may be needed; facial due process challenge has no force in this case, because Indian Civil Rights Act and Navajo Bill of Rights confer on defendant in this case all rights that he would enjoy under U.S. Constitution; conditions of 1868 treaty between Navajo Nation and United States for rendition of "bad" person have not been fulfilled in this case, and thus tribe need not turn over to United States for prosecution Indian defendant who is enrolled member of different tribe.

Related news stories: Supreme Court move settles tribal authority cases. (Indianz.com) 10/11/06.

Morris v. Tanner
Docket No. 05-1285
Briefs & Pleadings

Subjects: Criminal jurisdiction -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana -- Application -- Non-members of a tribe; Automobile driving -- On Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Criminal actions arising on Indian reservations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Traffic violations -- Salish & Kootenai Tribes of the Flathead Reservation, Confederated Tribes of, Montana; Leech Lake Band (Minn.) -- Members; Minnesota Chippewa Tribe -- Members; United States. Indian Civil Rights Act; Due process of law -- United States.

*Issues: (1) Does 25 U.S.C. § 1301(2) violate fundamental constitutional right of American Indians, who are citizens of United States, to equal protection guaranteed by Fifth Amendment by subjecting nonmember Indians, but no other similarly situated nonmembers of different race, to criminal prosecution and punishment by Indian tribes whose judicial proceedings are not constrained by Constitution? (2) Does same statute violate fundamental right of U.S. citizens to due process guaranteed by Fifth Amendment by subjecting them to criminal prosecution and punishment by extra-constitutional sovereigns, Indian tribes, within borders of United States but unconstrained by Constitution, which sovereigns, because of their racially and ethnically exclusive nature, deny them right of full and equal participation in their political life?

History: Petition for certiorari was filed on 4/6/2006. Petition was denied on 10/10/06.

*Holding below: Morris v. Tanner, 160 Fed.Appx. 600, 9th. Cir. Indian Civil Rights Act's 1990 amendments, under which tribal court jurisdiction in criminal cases extends to all Indians who are enrolled members of federally recognized tribe, and not just Indians who are members of prosecuting tribe, do not violate equal protection or due process principles, and thus district court properly entered summary judgment for Confederated Salish and Kootenai Tribes in whose tribal court criminal speeding charges are pending against enrolled member of Minnesota Chippewa Tribe who challenged constitutionality of 1990 amendments.

Related news stories: Supreme Court move settles tribal authority cases. (Indianz.com) 10/11/06.

Bruner v. Oklahoma ex rel. Oklahoma Tax Commission
Docket No. 05-1470
Briefs & Pleadings

Subjects: Mines and mineral resources -- Taxation -- Oklahoma; Mines and mineral resources -- Indian Country (Oklahoma); Indian allotments; Restricted lands; Five Civilized Tribes; Due process of law; United States. Constitution; Law -- United States.

*Issues: (1) Is federal law that subjects minerals produced on restricted allotted lands of Five Civilized Tribes after April 26, 1931, to all taxes, state and federal, unconstitutional in context of case at bar? (2) How could Oklahoma and lower federal courts totally and without explanation ignore solemn contract between Miller Bruner, full-blood Creek Indian, and United States? (3) Is statute of limitations tolled as to restricted (non-competent) Indians as determined by Oklahoma Court of Appeals but denied by Tenth Circuit Court of Appeals in Bruner v. United States, on Dec. 21, 2005, but not decided in U.S. District Court for Northern District of Oklahoma?

History: Petition for certiorari was filed on 5/15/2006. Petition was denied on 10/2/06.

*Holding below: Bruner v. State of Oklahoma, 130 P.3d 767, Court of Appeals of Oklahoma. Tax exemption granted to Indian tribes by original agreements between Creek Nation and United States provided exemption for only 21-year period, which expired by time Congress passed Act of May 10, 1928, which declared that "all minerals, including oil and gas, produced on or after April 26, 1931, from restricted allotted lands of members of the Five Civilized Tribes in Oklahoma, or from inherited restricted lands of full-blood Indian heirs or devisees of such lands, shall be subject to all State and Federal taxes of every kind and character the same as those produced from lands owned by other citizens of the State of Oklahoma," and thus taxpayer, although his grandfather was full-blood Creek Indian, is not entitled to refund of gross production and petroleum excise taxes paid to Oklahoma for 1989 through 1994; in any event, taxpayer's refund application filed with Oklahoma Tax Commission is time-barred.

Dark-Eyes v. Connecticut Commissioner of Revenue Services
Docket No. 05-1464
Briefs & Pleadings

Subjects: Income tax -- Connecticut; Mashantucket Pequot Tribe of Connecticut -- Members -- Taxation -- Connecticut; United States. Mashantucket Pequot Indian Claims Settlement Act; Indian Country (U.S.) -- Defined; Dependent Indian communities -- Defined..

*Issues: Were lands identified as "private settlement lands" in Connecticut Indian Land Claims Settlement Act, 25 U.S.C. §§ 1751-1760, set aside in that act for Mashantucket Pequot Tribal Nation, and did they become Indian country upon purchase by Mashantucket Pequot Tribal Nation?

History: Petition for certiorari was filed on 5/15/2006. Petition was denied on 10/2/06.

*Holding below: Dark-Eyes v. Commissioner of Revenue Services, 887 A.2d 848 , Supreme Court of CT. Enrolled member of federally recognized Mashantucket Pequot Tribe was properly subjected to state income tax on income she derived from sources within tribe's reservation in 1996-98 while living on property that was owned by tribe and designated as "private settlement lands" by Mashantucket Pequot Indian Claims Settlement Act, but that was not part of reservation, had not been set aside for use by Indians as Indian land within meaning of claims settlement act (because it had not been purchased with "settlement funds" appropriated under act to buy settlement lands but had instead been purchased by tribe with nonsettlement funds), and thus was not Indian country until taken into trust by federal government in August, 1998.

South Dakota v. Dept. of Interior
Docket No. 05-1428
Briefs & Pleadings

Subjects: Oacoma (S.D.); Lyman County (S.D.); South Dakota; Trust lands -- Lower Brule Sioux Tribe of the Lower Brule Reservation, South Dakota; United States. Dept. of the Interior; United States. Indian Reorganization Act; Acquisition of property -- South Dakota; Delegation of powers.

*Issues: Is 25 U.S.C. § 465, which allows secretary of interior to acquire, in trust, "in his discretion," any amount of "lands" at any location in nation, on or off reservation, for purpose of "providing land for Indians," unconstitutional delegation of legislative power?

History: Petition for certiorari was filed on 5/08/2006. Petition was denied on 10/2/06.

*Holding below: State of South Dakota v. United States Department of the Interior, 423 F.3d 790, 8th. Cir. Provision of Indian Reorganization Act that authorizes secretary of interior, "in his discretion," to acquire "any interest in lands ... within or without existing reservations ... for the purpose of providing land for Indians," 25 U.S.C. § 465, is not unconstitutional delegation of legislative authority when viewed in light of statutory aims and legislative history of IRA, whose goals of providing lands sufficient to enable Indians to achieve self-support and ameliorating damage resulting from prior government policy sufficiently narrow delegation and guide secretary's discretion in deciding when to take land into trust for Indians.

Utah v. Shivwits Band of Paiute Indians
Docket No. 05-1160
Briefs & Pleadings

Subjects: Jurisdiction -- United States; United States. Bureau of Indian Affairs; Leases -- Shivwits Band of Paiutes; Police power -- Utah; Trust lands -- Shivwits Band of Paiutes; Land use -- Shivwits Band of Paiutes.

*Issues: Is Congress's standardless grant of complete discretion to executive branch officer to acquire land "for Indians" unconstitutional delegation of legislative power?

History: Petition for certiorari was filed on 3/09/2006. Petition was denied on 10/2/06.

*Holding below: Shivwits Band of Paiute Indians v. State of Utah, 428 F.3d 966, 10th Cir. Under binding circuit precedent, United States v. Roberts, 185 F.3d 1125 (10th Cir. 1999), Section 465 of Indian Reorganization Act, 25 U.S.C. § 465, which authorizes secretary of interior "to acquire ... any interest in lands ... for the purpose of providing land for Indians," such land to be held "in trust" for tribe or individual "for which the land is acquired," provides standards for exercise of secretary's discretion and thus is not unconstitutionally standardless delegation of legislative power.

Related News Story: Third court decision favors land-into-trust process (Indianz.com) 11/11/05.

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* "Issues" and "Holding below" reproduced with permission from The United States Law Week on the Internet and print at: http://www.bna.com

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