Home

Indian Law Bulletins  |  U.S. Supreme Court  |  2007-2008 Term

A service of the National Indian Law Library of the Native American Rights Fund


A note about links used in this document

Text highlighted in blue are links to information available on the Internet free of charge. Text highlighted in green are links to information available on Westlaw, for the convenience of those who have a Westlaw account. Please contact the National Indian Law Library if you need help obtaining legal documents.The National Indian Law Library and Native American Rights Fund are not affiliated with Westlaw. See www.westlaw.com for more information about the Westlaw legal databases.

* Issues and holdings are provided under an agreement BNA, Inc. www.bna.com


2007-2008 Supreme Court Term: October 2007 - July 2008

Last updated: July 01, 2008

The 2007-2008 term has closed.

Please alert us to any cases we may have missed from the U.S. Supreme Court.


See Cases by Status


Three cases of importance to Native Americans have been decided by the U.S. Supreme Court in the 2007-2008 term.

Plains Commerce Bank v. Long Family Land and Cattle Company, Inc., et al.
Briefs & Pleadings
Docket No. 07-411

Subjects: Debtor and creditor; Jurisdiction -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana; Law -- Confederated Salish & Kootenai Tribes of the Flathead Reservation, Montana -- Application.

*Issues: Do Indian tribal courts have subject matter jurisdiction to adjudicate civil tort claims as "other means" of regulating conduct of nonmember bank, owning fee land on reservation, that entered into private commercial agreement with member-owned corporation?

History: Petition for certiorari was filed on 9/21/2007. Petition for certiorary was granted on 1/4/08. Oral argument was on 4/14/08. Decided 6/25/08.

*Holding below: Plains Commerce Bank v. Long Family Land and Cattle Co. Inc., 491 F.3d 878. Tribal court had jurisdiction over claim by tribal members that defendant bank, South Dakota corporation with its principal place of business outside tribe's reservation, discriminated against them, based on either their Indian ancestry or tribal affiliation, in terms of loan that bank made to their family-owned corporation, because claim satisfied requirements for first category of permissible tribal jurisdiction over nonmembers recognized in Montana v. United States, 450 U.S. 544 (1980), in that (i) bank had formed consensual relationship with tribal members, by virtue of loans to their corporation whose overwhelming tribal character clearly benefitted bank (through loan guarantees by Bureau of Indian Affairs that greatly reduced bank's risk) and bank's related commercial relationships with corporation's individual owners, and (ii) tribal tort law invoked by tribal members is appropriate "other means" of regulating activities of nonmember that have some nexus to consensual relationship, given that discrimination claim arose directly from pre-existing commercial relationship between tribal members and bank and sought to hold nonmembers, such as bank, to minimum standard of fairness when they voluntarily deal with tribal members.

Related News Stories: Justices restrict Indian courts' jurisdiction. (theday.com) Supreme Court reverses tribal jurisdiction ruling. (Indianz.com) 6/25/08. Supreme Court agrees to hear tribal jurisdiction case (Indianz.com) 1/8/08.

Exxon v. Baker
Briefs & Pleadings
Docket No. 07-219

Subjects: Stocks -- Exxon Shipping Company; Exemplary damages; Environmental disasters -- Alaska; Oil pollution of rivers, harbors, etc. -- Alaska; Oil spills -- Alaska -- Claims; Liability for oil pollution damages; Exxon Valdez Oil Spill, Alaska, 1989.

*Issues: (1) May punitive damages be imposed under maritime law against shipowner (as Ninth Circuit held, contrary to decisions of First, Fifth, Sixth, and Seventh Circuits) for conduct of ship's master at sea, absent finding that owner directed, countenanced, or participated in that conduct, and even when conduct was contrary to policies established and enforced by owner? (2) When Congress has specified criminal and civil penalties for maritime conduct in controlling statute, here Clean Water Act, but has not provided for punitive damages, may judge-made federal maritime law (as Ninth Circuit held, contrary to decisions of First, Second, Fifth, and Sixth Circuits) expand penalties Congress provided by adding punitive damages remedy? (3) Is $2.5 billion punitive damages award in this case, which is larger than total of all punitive damages awards affirmed by all federal appellate courts in our history, within limits allowed by federal maritime law?

History: Petition for certiorari was filed on 8/20/2007. Petition was granted on 10/29/07. Decided 6/25/08.

*Holding below: Baker v. Exxon Mobil Corp., 9th Cir., 490 F.3d 1066 Prompt action taken by Exxon both to clean up oil, following oil spill caused by Exxon Valdez, and to compensate plaintiffs for their economic losses mollifies to some material degree reprehensibility in economic terms of Exxon's reckless misconduct of knowingly placing relapsed alcoholic in charge of supertanker loaded with millions of barrels of oil, thereby risking livelihood of thousands, and thus warrants reduction in $4.5 billion punitive damages award against it to $2.5 billion, which is approximately five times $504.1 million harm component and is within range allowable under due process analysis, as explained in State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 71 U.S.L.W. 4282 (2003).

Related News Stories: Court declines to decide whether Exxon should pay interest on punitive damages from Valdez spill. (Anchorage Daily News) 8/13/08. Court slashes judgment in Exxon Valdez disaster. (Washington Post) 6/25/08. Exxon oli spill case may get closure. (Washington Post) 2/24/07

Crawford v. Marion County Election Board
Briefs & Pleadings
Docket No. 07-21

Subjects: Voting -- Indiana; Suffrage -- Indiana; Residency requirements; Voters (People) -- Identification; United States. Voting Rights Act of 1965; Marion County (Ind.); United States. Constitution. 1st Amendment; United States. Constitution. 14th Amendment.

*Issues: Does Indiana statute mandating that those seeking to vote in-person produce government-issued photo identification violate First and 14th Amendments to U.S. Constitution?

History: Petition for certiorari was filed on 7/02/07. Petition for certiorary was granted on 9/25/08. Argued 1/09/08. Decided 4/28/08.

*Holding below: Crawford v. Marion County Election Board, 472 F.3d. 949, Court affirms district court ruling that neither First Amendment nor 14th Amendment is violated by Indiana law that, in effort to reduce voting fraud, requires, with certain exceptions, that persons who want to vote in person in either primary or general election must present at polling place government-issued photo identification.

Related News Stories: Supreme Court upholds voter identification law in Indiana. (NY Times) 4/28/08. High court approves Indiana voter ID law (CBS/AP) 4/28/08. Supreme Court must uphold tribal civil jurisdiction (Asheville Citizen-Times) 5/1/08

Back to Top


Petitions for certiorari have been granted and decisions are pending in 1 case of special interest to Native Americans.

Carcieri v. Kempthorne
Briefs & Pleadings
Docket No. 07-526

Subjects: Narragansett Indian Tribe of Rhode Island; United States. Dept. of the Interior; Land into trust -- Narragansett Indian Tribe of Rhode Island -- Rhode Island -- Charlestown; Trust lands -- Narragansett Indian Tribe of Rhode Island -- Rhode Island -- Charlestown; Narragansett Indian Tribe of Rhode Island -- Housing; Rhode Island; United States. Indian Reorganization Act; Rhode Island Indian Claims Settlement Act; United States. Administrative Procedure Act; United States. Constitution.

*Issues: (1) Does Indian Reorganization Act empower secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934? (2) Does act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land preclude secretary from creating Indian country there? (3) Does providing land "for Indians" in Indian Reorganization Act establish sufficiently intelligible principle upon which to delegate power to take land into trust?

History: Petition for certiorari was filed on 10/18/2007. Petition was granted on 2/25/08.

*Holding below: Carcieri v. Kempthorne, 497 F.3d 15. Secretary of interior's interpretation of Indian Reorganization Act's definition of "Indian," which includes "all persons of Indian descent who are members of any recognized Indian tribe now under federal jurisdiction" and their descendants who were residing within boundaries of any Indian reservation on June 1, 1934, 25 U.S.C. § 479, to cover members of tribes that were recognized and under federal jurisdiction at time request for trust acquisition is made, rather than as of June 18, 1934, enactment of statute, is reasonable, consistent with department's prior interpretations, and entitled to deference, and thus includes Rhode Island tribe first recognized in 1983 for whom secretary, under 25 U.S.C. § 465, took into unreserved trust for tribe's benefit 32-acre parcel of Rhode Island land in 1998; 1978 Rhode Island Indian Claims Settlement Act, which provided that "[e]xcept as otherwise provided in this [act], the settlement lands shall be subject to the civil and criminal laws and jurisdiction of the State of Rhode Island," 25 U.S.C. § 1708(a), by its terms applied only to 1800 acres of "settlement lands" specified in act, did not implicitly repeal secretary's authority under 25 U.S.C. § 465 to take other Rhode Island lands under trust for tribes, and thus did not preclude 1998 reservation of lands in trust for tribe; Section 465's direction that land be acquired "for the purpose of providing land for Indians" has specific meaning in light of failure of allotment policy and congressional rejection of assimilation as goal, and thus does not violate nondelegation doctrine as lacking intelligible principle for execution.

Related News Stories: Supreme Court will rule on Narragansett dispute with Rhode Island (AP) 2/25/08.

Back to Top


Petitions for writ of certiorari are currently pending in 6 cases.

Klamath Tribes of Oregon, et al. v. PacificCorp
Briefs & Pleadings
Docket No. 07-1492

Subjects: Treaty rights -- Klamath Tribes, Oregon; Fishing rights -- Klamath Tribes, Oregon; PacificCorp.

*Issues: Should right of action at law for damages against private dam builder be recognized as preferred remedy for sole Northwest treaty that (a) forbids treaty Indians from leaving their reservation to protect their exclusively on reservation fishing right from downstream interference and (b) granted control over only means of salmon passage to non-Indian pioneers?

History: Petition for certiorari was filed on 5/28/2008.

*Holding below: Klamath Tribes of Oregon v. Pacific Corp, 2008 WL539266 Indian tribes' suit for damages against third party for violating exclusive fishing rights granted to tribes in 1864 treaty is foreclosed by Skokomish Indian Tribe v. United States, 410 F.3d 506, 73 U.S.L.W. 1554 (9th Cir. 2005) (en banc), which held that Indian tribe's suit for damages, against city and public utility stemming from hydroelectric project's flooding of Indian land, silting of river, and blocking of fish migration in alleged violation of tribe's treaty rights, is not cognizable under treaty that lacks language supporting damages claims against nonparties, and may not be brought by tribe or by individual tribal members under 42 U.S.C. § 1983.

Thomas E. Kemp, Chairman, Oklahoma Tax Commission, et al. v. Osage Nation
Briefs & Pleadings
Docket No. 07-1484

Subjects: Taxation -- Law and legislation -- Oklahoma -- Application -- Osage Tribe, Oklahoma -- Members; Income tax -- Osage Tribe, Oklahoma -- Members -- Oklahoma -- Osage County; Indian Country (Okla.) -- Defined; Osage Tribe, Oklahoma -- Officials and employees -- Taxation -- Oklahoma.

*Issues: (1) May federal courts employ doctrine of Ex parte Young to permit suits by Indian tribes, otherwise barred by state sovereign immunity, that seek to establish sovereignty and jurisdiction over historical reservations, without taking into consideration substantial impact of relief on sovereignty and jurisdiction long-exercised over such lands by states? (2) In view of this court's ruling in Idaho v. Coeur d'Alene Tribe of Idaho, and other decisions, may federal court allow Indian tribe's suit--otherwise barred by 11th Amendment--to proceed against state officers under so-called "straightforward inquiry" used to determine application of Ex parte Young exception, when relief would divest state of substantial and long-exercised civil and criminal jurisdiction over its largest county? (3) Does suit by Indian tribe seeking judicial determination that its historical reservation "remains" present-day reservation involve type of retrospective relief that cannot be pursued against state officers under Ex parte Young exception to state sovereign immunity?

History: Petition for certiorari was filed on 5/27/2008.

*Holding below: Osage Nation v. State of Oklahoma Ex Rel. Oklahoma Tax Commission,
2007 WL 4553668 Although 11th Amendment generally bars suit against state by Indian tribe, doctrine of Ex parte Young, 209 U.S. 123 (1908), permits tribal suit to enjoin state's assessment of income tax on certain tribal members to proceed in federal court against individual members of state tax commission, sued in their official capacities, because suit seeks relief that is prospective only by barring future taxation of tribal members who are employed by tribe on land held in trust for tribe by United States but who live elsewhere in county on land that is, at least ostensibly, not trust land; although case is more than mere tax dispute, in that its essence is whether tribe's reservation encompasses all of Osage County, Oklahoma, or only part of it, and calls to mind "literal land grab effort made by plaintiffs" in Idaho v. Coeur d'Alene Tribe of Idaho, 524 U.S. 261 (1997), which created exception to Young doctrine, basic issue is sovereignty, not title dispute or ownership of land, and, in determining applicability of Ex parte Young, court may not consider state sovereignty but only whether relief sought is prospective in caption and substance.

Ho-Chunk v. Wisconsin
Briefs & Pleadings
Docket No. 07-1402

Subjects: Gambling on Indian reservations -- Wisconsin; Indian gaming -- Class III -- Ho-Chunk Nation of Wisconsin; Intergovernmental agreements -- Ho-Chunk Nation of Wisconsin; Intergovernmental agreements -- Wisconsin; Jurisdiction -- United States; United States. United States Arbitration Act; United States. Indian Gaming Regulatory Act; Revenue sharing -- Wisconsin; Jurisdiction -- United States; Sovereign immunity -- Ho-Chunk Nation of Wisconsin.

*Issues: (1) Did Congress, when it enacted 25 U.S.C. § 2710(d)(7)(A)(ii), grant jurisdiction to district courts to enjoin Indian tribes from engaging in class III gaming for any violation of tribal-state compact? (2) Did grant of jurisdiction to district courts contained in 25 U.S.C. § 2710(d)(7)(A)(ii) waive sovereign immunity of Indian tribes to allow tribes to be sued by state for any violation of tribal-state compact, as opposed to only those violations that pertain to playing of class III games? (3) When court has concluded that statute passed for benefit of Indians and Indian tribes is ambiguous, is court compelled by canons of construction established by this court to construe statute in manner most favorable to Indians? (4) When court has concluded that federal statute that abrogates tribal sovereign immunity is ambiguous, is court compelled by canons of construction established by this court for abrogations and waivers of tribal sovereign immunity to construe abrogation narrowly.

History: Petition for certiorari was filed on 5/13/2008.

*Holding below: Wisconsin v. Ho-Chunk Nation, 512 F.3d 921 (District court has jurisdiction, and Congress abrogated Indian tribe's sovereign immunity, with respect to Wisconsin's claim under Indian Gaming Regulatory Act that sought to enjoin tribe's class III gaming, previously allowed under class III gaming compact between tribe and state, due to tribe's alleged refusal to submit to binding arbitration of compact disputes, given that (i) IGRA jurisdictional provision at 25 U.S.C. § 2710(d)(7)(A)(ii) states that federal district courts shall have jurisdiction over "any cause of action initiated by a State or Indian tribe to enjoin a class III gaming activity located on Indian lands and conducted in violation of any Tribal-State compact entered into under paragraph (3) that is in effect," (ii) referenced "paragraph (3)" governs negotiation process that tribes and states are to enter into for compacting under IGRA, (iii) paragraph (3)(C) lists seven matters that tribal-state compact negotiated under IGRA may address, including provisions "relating to-- ... remedies for breach of contract," and (iv) Wisconsin's amended complaint alleges that tribe violated compact by refusing to submit to binding arbitration in violation of compact's dispute resolution provision--matter clearly within paragraph (3)(C)'s description.

United States v. Navajo Nation
Briefs & Pleadings
Docket No. 07-1410

Subjects: Navajo Nation, Arizona, New Mexico & Utah; United States. Tucker Act; Breach of trust -- United States; Coal mines and mining -- On Indian reservations; Mining leases; United States. Indian Mineral Leasing Act of 1938; United States. Indian Mineral Leasing Act; United States. Surface Mining Control and Reclamation Act.

*Issues: (1) Is holding that United States breached fiduciary duties in connection with Navajo coal lease amendments foreclosed by United States v. Navajo Nation? (2) If Navajo did not foreclose question, did court of appeals properly hold that United States is liable as matter of law to Navajo Nation for up to $600 million for secretary's actions in connection with his approval of amendments to Indian mineral lease based on several statutes that do not address royalty rates in tribal leases and common law principles not embodied in governing statute or regulation?

History: Petition for certiorari was filed on 5/13/2008.

*Holding below: Navajo Nation v. United States, 501 F.3d 1327. Indian tribe is entitled to judgment on its Indian Tucker Act claim against United States for breach of its trust duties related to lease of tribe's lands for coal mining to third party; although United States v. Navajo Nation, 537 U.S. 488, 71 U.S.L.W. 4146 (2003), held that 1938 Indian Mineral Leasing Act and its implementing regulations do not constitute substantive source of law required to establish such claim, network of other statutes and regulations cited by tribe, including 1950 Navajo-Hopi Rehabilitation Act, 1977 Surface Mining Control and Reclamation Act, and 1983 Federal Oil and Gas Royalty Management Act, are reasonably amenable to interpretation mandating right of recovery in damages against government, under Indian Tucker Act, for violating its common law fiduciary trust duties of care, candor, and loyalty, and duties imposed by such statutory network, and thus provide required substantive source of law.

Related News Stories: Bush seeks review of long-running Navajo trust case (Indianz.com) 5/19/08

Hawaii v. Office of Hawaiian Affairs
Briefs & Pleadings
Docket No. 07-1372

Subjects: Office of Hawaiian Affairs; Land titles – Registration and transfer -- Maui (Hawaii); Land titles -- Registration and transfer -- Hawaii Island (Hawaii); Transfer (Law); Public lands -- Hawaii; Trust lands -- Hawaii; Housing and Community Development Corporation of Hawaii.

*Issues: Does symbolic resolution to acknowledge 100th anniversary of Jan. 17, 1893, overthrow of Kingdom of Hawaii, in which Congress acknowledged and apologized for United States' role in that overthrow, strip Hawaii of its sovereign authority to sell, exchange, or transfer 1.2 million acres of state land--29 percent of total land area of state and almost all of land owned by state--unless and until it reaches political settlement with native Hawaiians about status of that land?

History: Petition for certiorari was filed on 4/29/2008.

*Holding below: Office of Hawaiian Affairs v. Housing and Community Development Corporation of Hawai'i, 77 P.3d 884. In action opposing state Housing and Community Development Corporation of Hawaii's efforts in 1990s to transfer various parcels of ceded lands, including Leiali'i parcel, to private entrepreneurs for purpose of residential development, trial court's ruling declaring that state was authorized to alienate ceded lands from public lands trust is vacated, and, in light of Apology Resolution enacted by Congress, which, along with related state legislation, gave rise to state's fiduciary duty to preserve corpus of public lands trust--specifically, ceded lands--until such time as unrelinquished claims of native Hawaiians have been resolved, case is remanded with instructions to issue order granting plaintiffs' request for injunction against sale or other transfer to third parties of Leiali'i parcel and any other ceded lands from public lands trust until claims of native Hawaiians to ceded lands have been resolved.

Kickapoo Traditional Tribe of Texas v. Texas
Briefs & Pleadings
Docket No. 07-1109

Subjects: Texas; United States; Indian gaming -- Class III -- Kickapoo Traditional Tribe of Texas; Intergovernmental agreements -- Texas; Intergovernmental agreements -- Kickapoo Traditional Tribe of Texas; Negotiation -- Texas; United States. Indian Gaming Regulatory Act; Good faith (Law).

*Issues: (1) Does state's refusal to consent to IGRA's judicial remedy also nullify secretary's fallback authority to issue procedures to regulate Indian gaming as held by Fifth Circuit, contrary to reasoning of Ninth and Eleventh Circuits? (2) If secretary's fallback authority to regulate Class III gaming is struck down, as Fifth Circuit held, should IGRA's now-inappropriate requirement of tribal-state compact fall also, consistent with this court's severance analysis under Alaska Airlines Inc. v. Brock, 480 U.S. 678 (1987)?

History: Petition for certiorari was filed on 2/25/2008.

*Holding below: State of Texas v. United States, 497 F.3d 491. Indian Gaming Regulatory Act is violated by secretary of interior's regulations for resolving impasse between Indian tribe seeking to operate Class III gaming on its reservation and state where reservation is located that has refused to waive its sovereign immunity from tribe's suit under IGRA to determine whether state has negotiated in good faith, such regulations permitting tribe to submit Class III gaming proposal to secretary, after which state has two options: (i) refuse to submit alternative proposal, after which secretary reviews tribe's proposal, either approves it or offers opportunity for conference between state and tribe to address unresolved issues in tribe's proposal, and then makes final decision either setting forth secretary's proposed Class III gaming procedures for tribe, or disapproving tribe's proposal, or (ii) submit alternative proposal, after which secretary appoints mediator to resolve differences between state's plan and tribe's proposal and then either accepts mediator's proposal or prescribes his own terms under which Class III gaming may take place; under IGRA, Congress left little remedial authority for secretary to exercise, and IGRA's judicially managed scheme of litigation over state's good faith, followed by negotiation, and then mediation, allows secretary to step in only at end of process and then only to adopt procedures based upon mediator's proposed tribal-state compact for Class III gaming; IGRA does not permit secretary to decide state's good faith, to require or name mediator, or to pull out of thin air compact provisions that secretary is then empowered to enforce.

Back to Top


Petition for writ of certiorari has been denied 10 Indian law cases during this term.

Carls v. Blue Lake Housing Authority
Briefs & Pleadings
Docket No. 07-1037

Subjects: Blue Lake Housing Authority; Sovereign immunity -- Indian business enterprises -- Blue Lake Rancheria, California; Construction contractor.

*Issues: When tribe voluntarily acquires nontribal business, with existing contract obligations, does sovereign immunity allow tribe to repudiate those obligations?

History: Petition for certiorari was filed on 2/07/2008. Petition was denied on 5/12/08.

*Holding below: Carls v. Blue Lake Housing, 2007 WL 2040562. Absent express waiver of tribal sovereign immunity, tribal entity that acquired assets and liabilities of nontribal building contractor, which thereafter ceased doing business, is immune from claims of contractor's customer seeking damages for alleged construction defects in work that contractor did on house located on nontribal land.

Related News Stories: U.S. Supreme Court rejects case by El Dorado Hills homeowner (The Sacramento Bee) 5/15/08

MacArthur v. San Juan County
Docket No. 07-701
Briefs & Pleadings

Subjects: Health facilities -- On Indian reservations -- Navajo Nation, Arizona, New Mexico & Utah; Health facilities -- Utah -- San Juan County; Employees, Dismissal of -- San Juan Health Services District; Utah Navajo Health Systems; Law -- Navajo Nation, Arizona, New Mexico & Utah -- Application -- Non-members of a tribe; Civil jurisdiction -- Navajo Nation, Arizona, New Mexico & Utah.

*Issues: Do Article III courts have any subject matter jurisdiction to do anything other than give full force and effect to Navajo Nation Court civil law judgments, decrees, and orders of all types, including these orders?

History: Petition for certiorari was filed on 11/13/2007. Petition was denied on 2/19/08.

*Holding below: MacArthur v. San Juan County, 497 F.3d 1057 Court must refrain, under comity doctrine, from enforcing much of Navajo district court's preliminary injunction orders against health clinic defendants in employment-related suit because Navajo court lacked subject matter jurisdiction over nearly all activities of defendants, who were nonmembers of tribe; court also exercises its discretion not to enforce tribal judgment even as to claims against tribal members over which tribal court arguably had subject matter jurisdiction, given that nonmember entity's assumption of control over clinic operations mooted much of relief afforded in preliminary injunction orders, and that amorphous and incomplete nature of orders renders them nearly incapable of enforcement.

Jones v. Minnesota
Docket No. 07-412
Briefs & Pleadings

Subjects: Criminals -- Records -- Law and legislation -- United States; Jurisdiction -- Minnesota; Criminal registers -- Minnesota.

*Issues: Does State of Minnesota have jurisdiction to enforce its statute requiring registration of persons designated as "predatory offenders" against Indians who reside in Indian Country as either "criminal/prohibitory" statute or as "exceptional" circumstance?

History: Petition for certiorari was filed on 8/13/2007. Petition was denied on 1/7/08.

*Holding below: State v. Jones, 729 N.W.2d 1. Minnesota's predatory offender registration statute is criminal/prohibitory in nature, and thus state has subject matter jurisdiction to prosecute enrolled Indian tribal member who resides on reservation for residing or moving without maintaining current address registration with appropriate authorities after having been convicted of predicate predatory offense.

Mann v. Fong, North Dakota Tax Commissioner, et al
Docket No. 07-671
Briefs & Pleadings

Subjects: TEK Industries; Motor fuels -- Taxation -- North Dakota -- On Indian reservations; Excise taxes -- North Dakota -- On Indian reservations; North Dakota. Office of State Tax Commissioner; North Dakota. State Treasurer's Office; Tax collection -- North Dakota; Tax refunds -- North Dakota.

*Issues: (1) After taxpayers file court suit for tax refunds, can state substitute new law that requires administrative claims and does not provide for hearing? (2) Does due process prohibit state from imposing new refund law retroactively for period of nine years?

History: Petition for certiorari was filed on 11/16/2007. Petition was denied on 1/7/09.

*Holding below: Mann v. North Dakota Tax Commissioner, 736 N.W.2d 464. Administrative process set up by North Dakota for refunding to enrolled members of Native American tribes residing on reservations state fuel tax that was determined to be unlawful, which allows tribal members to claim refunds for fuel taxes upon submission of original invoices or sales receipts or, if those are not available, affidavit relating to sales and authorizes refund claimant to protest refund denial under rules adopted by tax commissioner and under procedures that entitle claimant to hearing to contest denial, provides meaningful backward-looking relief with clear and certain remedy to address unlawful deprivation and therefore complies with due process requirements; six-year statute of limitations applicable to recovering tax refunds under law that is applicable retroactively was tolled when suit was pending, and thus, because look-back period begins six years from Sept. 22, 2003, when suit was filed, claimants are entitled to refunds for fuel taxes paid after Sept. 21, 1997, under designated process.

Houlton Band of Maliseet Indians v. Ryan
Briefs & Pleadings
Docket No. 07-354

Subjects: Houlton Band of Maliseet Indians of Maine; Maine Human Rights Commission; Discrimination in employment -- Houlton Band of Maliseet Indians of Maine; Sovereignty -- Houlton Band of Maliseet Indians of Maine; Sovereign immunity -- Houlton Band of Maliseet Indians of Maine; Sovereignty -- Houlton Band of Maliseet Indians of Maine; Jurisdiction -- Houlton Band of Maliseet Indians of Maine; Maine. Indian Claims Settlement Act.

*Issues: 1) Does denying Houlton Band of Maliseet Indians inherent sovereign right to govern their own internal tribal affairs because of language in 1980 Maine Indian Claims Settlement Act ignore federal common law establishing this sovereign right, disregard this court's decisions to same effect, and usurp very tribal rights that Congress acknowledged when it adopted statute? (2) When Congress has not expressly provided otherwise, and following logic of Montana v. United States, 450 U.S. 544 (1981), is Maliseet tribal government, instead of state administrative agency, proper forum to determine workplace discrimination claim against tribe by its nonmember employee arising from her consensual employment on tribal lands? (3) Is ruling below at odds with those courts of appeals that recognize that federally recognized tribe like Maliseet, absent explicit contrary directive by Congress, retains inherent tribal right of self-government and right to decide workplace discrimination claims by its nonmember employee arising from her consensual employment on tribal lands?

History: Petition for certiorari was filed on 9/14/2007. Petition was denied on 11/26/07.

*Holding below: Houlton Band of Maliseet Indians v. Ryan, 484 F.3d 73. Decision in Aroostook Band of Micmacs v. Ryan, 484 F.3d 41 (1st Cir. Apr. 17, 2007), Decision in Aroostook Band of Micmacs v. Ryan, which held that federal statute, 1980 Maine Indian Claims Settlement Act, allows Maine to enforce its employment discrimination laws against Maine tribes, forecloses Houlton Band of Maliseet Indians' claims that former employee's job bias complaint is barred by either Houlton Band's inherent tribal sovereignty and its statutory right to self-governance, or its tribal sovereign immunity.

Aroostook Band of Micmacs v. Ryan
Briefs & Pleadings
Docket No. 07-357

Subjects: Sovereignty -- Aroostook Band of Micmac Indians of Maine; Sovereign immunity -- Aroostook Band of Micmac Indians of Maine; Maine Human Rights Commission; Maine. Maine Human Rights Act; Maine. Maine Whistle Blower Protection Act; Maine. Maine Micmac Settlement Act; Jurisdiction -- Maine; Jurisdiction -- United States; Employees -- Dismissal of.

*Issues: (1) Does denying Aroostook Band of Micmacs inherent sovereign right to govern their internal tribal affairs because of language in 1980 MICSA, statute that Congress did not intend to apply to band, ignore federal common law establishing their sovereign rights, disregard this court's decision to same effect, and usurp very tribal rights that Congress acknowledged when it passed 1991 ABMSA? (2) When Congress has not expressly provided otherwise and following logic of this court's decision in Montana v. United States, 450 U.S. 544 (1981), is Micmac tribal government instead of state administrative agency proper forum to determine workplace discrimination claim against tribe by its nonmember employees arising from their consensual employment on tribal lands? (3) Is ruling below at odds with those courts of appeals that recognize that federally recognized tribe like Micmacs retains inherent tribal right of self government and right to decide workplace discrimination claims by nonmember employees arising from their consensual employment on tribal lands?

History: Petition for certiorari was filed on 9/14/2007. Petition was denied on 11/26/07.

*Holding below: Aroostook Band of Micmacs v. Ryan, 484 F.3d 41
Provision of 1980 Maine Indian Claims Settlement Act that makes "all Indian ... tribes or bands of Indians in the State of Maine," with certain exceptions not relevant here, subject to state laws "to the same extent as any other person," 25 U.S.C. § 1725(a), abrogates any aspects of sovereign immunity that might prevent application of Maine's employment laws to claims against Aroostook Band of Micmacs by three of its former employees who allege that they were fired on basis of race, color, and national origin, in violation of state law, and that they were victims of unlawful retaliation, also in violation of state law; 1980 MICSA and 1991 Aroostook Band of Micmacs Settlement Act, which were designed to settle Indian claims, displaced any federal common law that might otherwise bear on this dispute; congressional ratification in MICSA of 1979 state settlement law, provision of which exempting from state regulation internal tribal affairs of certain tribes did not encompass Aroostook Band, also defeats band's claim that it retains authority over these job bias disputes as part of its inherent tribal sovereignty; 1991 ABMSA is not in conflict with, and did not implicitly repeal, MICSA's Section 1725(a).

Reber v. Utah
Briefs & Pleadings
Docket No. 07-103

Subjects: Poaching -- Utah -- Uintah County; Deer hunting -- Indian Country (Utah); Jurisdiction -- Utah; FIsh and game licenses -- Utah; Indians of North America -- Defined; Indian Country (Utah) -- Defined.

*Issues: (1) Should jury have been able to determine whether adult petitioners acted reasonably in relying upon published opinions of Tenth Circuit? (2) Could juvenile court delete intent as element of offense charged against juvenile petitioner after receiving uncontested evidence that juvenile acted at direction of his father and in reliance upon federal court rulings? (3) Were adult petitioners denied fair trial due to bias on part of trial judge? (4) Did Ute Partition Act expel Uintah Band as body from Ute Tribe? (5) Could Ute Partition Act have any effect on treaty rights of person born prior to act who was not included on termination roll prepared under act?

History: Petition for certiorari was filed on 7/23/2007. Petition was denied on 10/29/07.

*Holding below: State v. Reber, 2007 WL 1189637, State has jurisdiction over victimless crime committed by non-Indian in Indian country; because defendants' ancestors lost their legal status as Indians under Ute Partition Act, and because Uintah Band in which they claim membership is not recognized as tribe by federal government, they are not Indians under federal law, and thus, because their crimes--wanton destruction of protected wildlife--were victimless crimes that occurred within Indian country but not on Indian land, state has jurisdiction over their crimes; defendants' convictions are reinstated.

Cawtawba Indian Tribe of South Carolina v. South Carolina
Docket No. 07-69
Briefs & Pleadings

Subjects: Indian gaming -- Catawba Indian Tribe of South Carolina; South Carolina; Video poker-- Catawba Indian Tribe of South Carolina; Fees, Administrative -- Catawba Indian Tribe of South Carolina; South Carolina Land Claims Settlement Act.

*Issues: Does provision of Catawba Indian Tribe of South Carolina Land Claims Settlement Act that makes amendments to settlement agreement and to state legislation approving it contingent on tribal consent bar application to tribe of state's subsequently enacted ban on video poker?

History: Petition for certiorari was filed on 7/16/2007. Petition was denied 10/1/07.

*Holding below: Catawba Indian Tribe v. State, 642 S.E.2d 751, Under federal law implementing agreement that settled tribal land claims, as well as under congressionally approved state law implementing agreement that gives tribe right to allow video poker or similar electronic play devices on its reservation "to the same extent that the devices are authorized by state law," state's subsequent enactment of statewide ban on video poker is applicable to tribe and forbids video poker on tribe's reservation, despite tribe's contention that because federal act approving agreement requires consent of both tribe and state to amend settlement agreement and state law approving it, subsequent state legislative enactments are not applicable to tribe unless it consents to them.

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: (1) Should certiorari be granted to resolve conflict among circuits as to whether waiver of sovereign immunity in Section 702 of APA is limited by final agency action requirement of Section 704 or judicial review provisions of Section 706 of APA? (2) Should certiorari be granted to resolve conflict among circuits as to whether this court's opinions addressing tribal claims for money damages under Tucker Act limit this court's opinions addressing tribal claims for equitable relief under treaties and common law Indian trust doctrine?

History: Petition for certiorari was filed on 6/14/2007. Petition was denied 10/1/07.

*Holding below: Gros Ventre Tribe v. United States, 469 F.3d 801, Government's trust obligation to Native American tribes cannot be enforced independently of statutorily granted right, statutes that tribal plaintiffs' cite do not authorize private right of action, and thus tribal claims against United States and several government agencies, alleging that defendants violated common law trust obligations to protect tribal resources, primarily water rights, in their handling of two cyanide heap-leach gold mines located upriver from tribes' reservation, must be stated within confines of Administrative Procedure Act, including compliance with APA's requirement of "final agency action"; absent "final agency action" within APA's six-year limitations period, tribal complaint was properly dismissed; because district court's summary judgment for government is affirmed on basis of its holding that tribal claims were either barred by limitations, not based on final agency action, or did not involve controversy for which tribes had standing, it is unnecessary to resolve conflict in case law on issue of whether APA's waiver of sovereign immunity under Section 702 for non-monetary actions against government is conditioned upon plaintiff's challenging "final agency action" as set forth in Section 704.

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

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. Petition was denied 10/1/07.

*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.

Back to Top


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

Copyright 2000-2007 by The Bureau of National Affairs, Inc. (800-372-1033).

Back to Top

Home  |   Search  |   Disclaimer  |   Privacy Statement  |   Site Map