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2009-2010 Supreme Court Term: October 2009 - July 2010

Last Updated: August 17, 2010

The 2009-2010 term has closed.


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No Native American law cases were decided by the U.S. Supreme Court in the 2009-2010 term.

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1 Native American law case remains pending after being granted review in the 2009-2010 term. See the 2010-2011 Supreme Court Bulletin for the current status of this case.

United States v. Tohono O'dham Nation
Briefs & Pleadings
Docket No. 09-846

Subjects: Tribal Trust Funds, Breach of Trust, Mineral leases - Royalities, Conservation of Natural Resources, Tohono O'odham Nation of Arizona

*Issues: Does 28 U.S.C. § 1500 deprive the Court of Federal Claims of jurisdiction over a claim seeking monetary relief for the government's alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits?

History: Petition was filed on 01/15/10. Petition was granted on 4/19/10.

*Holding below: Tohono O'Odham Nation v. United States, 2009 WL 650283 Under 28 U.S.C. § 1500, the United States Court of Federal Claims lacks jurisdiction over "any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States." In Loveladies Harbor, Inc. v. United States, 27 F.3d 1545 (Fed. Cir. (en banc) 1994), the Federal Circuit held that Section 1500 applies only if two claims "arise from the same operative facts" and "seek the same relief." The thrust of the claims brought by the Tohono O'odham Nation in district court indicated that the plaintiff was seeking a declaration that the United States was in breach of its duties as a trustee and the specific performance of those duties. The relief sought is entirely equitable, and includes an accounting, a restatement of trust account balances in conformity with the accounting, and any "equitable relief that may be appropriate (e.g., disgorgement [or] equitable restitution ...)." In the claims court, the plaintiff's complaint, filed one day after the district court complaint, seeks only damages at law for "gross breaches of trust" and requests no injunctive or equitable relief. Accordingly, because the relief requested in each complaint is different from the other, Section 1500 does not divest the claims court of jurisdiction, and the claims court erred by dismissing the action for lack of subject matter jurisdiction.

Related News Stories: Federal Circuit ruling in Tohono O'odham trust case (Indianz.com) 3/16/09

 

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5 petitions for writ of certiorari were left pending after the end of the 2009-2010 term. See the 2010-2011 Supreme Court Bulletin for the current status of these cases.

United States v. Eastern Shawnee
Briefs & Pleadings
Docket No. 09-1521

Subjects: not yet available

*Issues: Does 28 U.S.C. § 1500 deprive the Court of Federal Claims of jurisdiction over a claim seeking monetary relief for the government's alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts that seeks relief paralleling the relief available in the Court of Federal Claims?

History: Petition was filed on 6/15/10.

*Holding below: Eastern Shawnee Tribe of Oklahoma v. United States, 582 F.3d 1306, A suit filed in the Court of Federal Claims seeking relief that is not sought in a suit filed by the same plaintiff in a federal district court, and that the district court cannot award, is not barred by 28 U.S.C. § 1500, which provides that the Court of Federal Claims "shall not have jurisdiction of any claim for or in respect to which the plaintiff or his assignee has pending in any other court any suit or process against the United States." Accordingly, Section 1500 does bar an Indian tribe's suit in the Court of Federal Claims that, although arising from the same set of operative facts as a suit that it had filed eight days earlier in a federal district court, seeks consequential damages that are not sought in the district court and that the district court cannot award. The tribe's district court complaint seeks only an accounting of its trust assets from the government and disavows at least some claims for money damages, stating that the tribe "may have claims to damages that cannot be ascertained" until after the government makes an accounting of the tribe's trust property and accounts and that "[s]ome of these claims, should they exist, will have to be filed in the United States Court of Federal Claims."

Maybee v. Idaho
Briefs & Pleadings
Docket No. 09-1471

Subjects: not yet available

*Issues: May a settling state (i.e., a state that participates in the 1998 settlement of the multi-state claims against the nations' four largest tobacco companies) prohibit the sale of certain brands of cigarettes manufactured by tobacco companies that have never been sued, or otherwise alleged or found culpable for conduct giving rise to liability?

History: Petition was filed on 6/01/10.

*Holding below: State v. Maybee, 224 P.3d. 1109, A Native American vendor of cigarettes who lives on a reservation in New York and sells cigarettes on the Internet to Idaho consumers is subject to Idaho's Tobacco Master Settlement Agreement Complementary Act, under which he must make qualifying payments into an escrow account (used by the state to offset the cost of tobacco-related health conditions) in order to qualify as a lawful seller of cigarettes in Idaho, and Idaho's Prevention of Minors' Access to Tobacco Act. The Interstate Commerce Clause does not preempt the Complementary Act as applied to the vendor, because it does not treat interstate sellers any differently than it treats intrastate sellers. Similarly, the Indian Commerce Clause does not preempt application of the two Idaho statutes to the vendor, because the statutes regulate only the vendor's off-reservation conduct--selling, and offering for sale, tobacco products in Idaho.

Metlakatla Indian Community v. Sebelius
Briefs & Pleadings
Docket No. 09-1466

Subjects: not yet available

*Issues: (1) Did the Federal Circuit err when it ruled that the limitations period in Section 605(a) of the CDA is not jurisdictional, but then also held that the timely filing of a claim and exhaustion under Section 605(a) is a jurisdictional requirement that has to be met before class action tolling may apply to that very same limitations period? (2) Did the Federal Circuit err in holding that a potential class member must take action to establish class action court jurisdiction over that potential class member's claim in order for that same class member to obtain the benefit of class action limitations tolling?

History: Petition was filed on 6/01/10.

*Holding below: Metlakatla Indian Community v. Sebelius, 583 F.3d 785 Under American Pipe & Constr. Co. v. Utah , 414 U.S. 538 (1974), "class action tolling" of the statute of limitations accrues not only with respect to the named parties, but also with respect to "all asserted members of the class who would have been parties had the suit been permitted to continue as a class action," even when the district court denies class certification. The requirement of Section 605(a) of the Contract Disputes Act that "[e]ach claim by a contractor against the government relating to a contract ... shall be submitted [to a contracting officer] within 6 years after the accrual of a claim," 41 U.S.C. § 605(a), is a prerequisite to suit that a party must satisfy to properly exhaust administrative remedies. It is thus also a requirement for eligibility to be a class member. Accordingly, Indian tribes that failed to submit claims under their contracts with the Indian Health Service within six years of the claims' accrual could not have been class members in either of two district court suits, authorized under the Indian Self-Determination and Education Assistance Act, involving similar claims and filed prior to the tribes' administrative proceeding before the Civilian Board of Contract Appeals. The tribes thus could not invoke class action tolling of the CDA statute of limitations in the CBCA proceeding based on those district court suits. Nevertheless, Section 605(a) is subject to the general presumption that Congress intended equitable tolling to be available unless there is good reason to believe otherwise. It is also a simple provision lacking technical or emphatic language. It is thus subject to equitable tolling. The case is remanded to the CBCA for a determination of whether the limitations period should be tolled under the circumstances of these cases.

Schaghticoke Tribal Nation v. Salazar
Briefs & Pleadings
Docket No. 09-1433

Subjects: not yet available

*Issues: When reviewing a petitioner's due process claim that undue political pressure has actually affected or influenced a federal administrative adjudicative decision, must a federal court also consider the petitioner's claim that due process was violated by the appearance of bias or impropriety arising from the political pressure?

History: Petition was filed on 5/24/10.

*Holding below: Schaghticoke Tribal Nation v. Kempthorne, 587 F.3d 132. In order to show undue political influence affecting a decision of a federal administrative agency, "there must be some showing that the political pressure was intended to and did cause the agency's action to be influenced by factors not relevant under the controlling statute." The arguments made by the petitioner, Schaghticoke Tribal Nation, that statements and actions by Connecticut politicians as well as members of Congress expressing criticism concerning the interim decision by the Interior Department favoring acknowledgment of tribal existence improperly influenced the agency's final decision not to recognize the tribe, were disputed by testimony from Interior Department officials who stated that they were not influenced by the political clamor. Moreover, whatever political pressure may have been exerted on the department was exerted on senior agency officials and not the official ultimately responsible for the decision. Accordingly, the dismissal by the trial court of the petitioner's challenge to the decision under Section 702 of the Administrative Procedure Act is affirmed.

Related News Stories: Supreme Court asked to hear Schaghticoke recognition lawsuit (Indianz.com) 06/29/10. Schaghticoke files cert on acknowledgment reversal (Indian Country Today) 5/26/10.

Hogan v. Kaltag Tribal Council
Briefs & Pleadings
Docket No. 09-960

Subjects: Native Americans--Alaska tribes--Child custody proceedings involving nonmember of tribe.

*Issues: Did the Ninth Circuit correctly hold--in conflict with the decisions of this court and other courts as well as with the express intent of Congress--that the hundreds of Indian tribes throughout the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a nonmember and then to compel the state to give full faith and credit to the decrees entered in such proceedings?

History: Petition was filed on 02/11/10.

*Holding below: Kaltag Tribal Council v. Hogan , 2009 WL 2736172. Binding circuit precedent requires that full faith and credit be given by the State of Alaska to an adoption judgment issued by a Native American tribal court. The district court's decision, which was affirmed in its entirety, also held that, despite the adoptive parents' membership in a completely different tribe from that of the child, a tribe's inherent sovereignty to adjudicate internal domestic custody matters depends on the tribal membership of the child, and not that of the parents.

Related News Stories: Supreme Court asks for DOJ views on Alaska ICWA case (Indianz.com) 04/26/10.

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24 petitions for writ of certiorari were denied in the 2009-2010 term.

Rule 46 Withdrawal
Cobell v. Salazar
Briefs & Pleadings
Docket No. 09-758

Subjects: not yet available

*Issues: Did the court of appeals err in holding--contrary to the plain language of the Indian Trust Management Reform Act, this court's precedent, and a decision of the Eighth Circuit--that respondents need not conduct an accurate and complete fiduciary accounting of "all funds" in the Individual Indian Money trust, but instead may substantially limit the accounting duty to one that can be discharged "in a reasonable time, with the money that Congress is willing to appropriate"?

History: Petition was filed on 12/18/09. Petition was withdrawn (rule 46) on 6/28/10.

*Holding below: In this class action by beneficiaries of Individual Indian Money trust accounts, alleging breach of fiduciary duty by federal officials who hold funds in trust on behalf of individual American Indians and seeking an accounting for all such funds, the district court correctly held that a full accounting is required, but erred in holding that an accounting cannot be conducted because, in the district court's view, Congress will never appropriate the funds necessary to conduct such an accounting. The unique nature of this trust requires the district court to exercise equitable powers in resolving the paradox between classical accounting and limited government resources; it must mold its decree to the necessities of the particular case. In this case, the average cost of accounting, per transaction, for some transactions would exceed the average value of the transactions. Accordingly, the district court is instructed "to use its equitable power [on remand] to enforce the best accounting that [the Department of] Interior can provide, with the resources it receives, or expects to receive, from Congress." Although the proper scope of the accounting remains a question for the district court, the court's overarching aim "should be for Interior to provide the trust beneficiaries the best possible accounting, in a reasonable time, with the money that Congress is willing to appropriate." An equitable accounting may include the use of statistical sampling when verifying transactions, because sticking to the ideal concept of a complete historical accounting would render the accounting impossible or, what is functionally the same, it would not be finished for about 200 years, generations beyond the lifetimes of all now-living beneficiaries.

Oglala Sioux Tribe of the Pine Ridge Indian Reservation v. United States Army Corps of Engineers
Briefs & Pleadings
Docket No. 09-1051

Subjects: not yet available

*Issues: (1) Does the five-year statute of limitations of Section 12 of the ICCA, which applies only to claims accruing no later than August 13, 1946, bar federal court jurisdiction over an Indian tribe's claim that the government breached its trust responsibility to consult the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe's cultural and historic heritage located on federal lands within the tribe's aboriginal territory, specifically before making the transfers of federal lands authorized by the 1999 Water Resources Development Act, when the tribe's breach-of-duty-to-consult claim does not involve either an historical land claim for money damages or the revision of treaties, contracts, or agreements between the tribe and the United States, and when the breach occurred no earlier than 2002 when the WRDA transfers began? (2) Does an Indian tribe have standing to pursue its claim that the government breached its trust responsibility to consult the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe's cultural and historic heritage located on lands within the tribe's aboriginal territory when the merit of the tribe's nonfrivolous contention, that it has a legally protected interest in the tribe's aboriginal territory based on the government's trust relationship with the Indian tribes, must be assumed in assessing the tribe's standing to sue? (3) Does the ICCA's five-year statute of limitations bar federal court jurisdiction of a Sioux Indian tribe's claims that the 1889 Act of Congress purportedly changing the boundaries of the Great Sioux Reservation never went into effect for failure to satisfy the conditions specified by Congress in Section 28 of that act, when those claims do not involve either an historical land claim or the revision of treaties, contracts, or agreements between the tribe and the United States? (4) Does a Sioux Indian tribe have standing to pursue its claims that an 1889 Act of Congress purportedly changing the Great Sioux Reservation boundaries never went into effect for failure to satisfy the conditions specified by Congress, when the challenged WRDA transfers of federal lands to the state of South Dakota adversely affect the tribe's legally protected interests in Native American cultural and historic items and sites located on federally owned fee lands situated within the pre-1889 Act boundaries of the Great Sioux Reservation, thereby triggering the obligation under Article 12 of the Fort Laramie Treaty of 1868 to obtain the consent of the Sioux Tribes to this "cession" of reservation territory?

History: Petition was filed on 03/01/10. Petition was denied on 6/28/10.

*Holding below: Oglala Sioux Tribe of the Pine Ridge Indian Reservation v. United States Army Corps of Engineers , 2009 WL 1812741. The Oglala Sioux Tribe's claims that would require the court to decide whether to rescind the Sioux Tribe's agreements with the United States approving the Act of March 2, 1889's diminishment of the Great Sioux Reservation occupying the western half of South Dakota, to declare that act null and void, and to treat the area as if the 1868 Treaty establishing the Great Sioux Reservation had not been modified, are barred by the five-year limitations period in the 1946 Indian Claims Commission Act, which applied to Indian claims in law and equity then existing and arising under the Constitution, federal law, and treaties between Indian tribes and the United States. The claims fall under Section 2(3) of the ICCA, which encompasses "claims which would result if the treaties, contracts, and agreements between the claimants and the United States were revised on the ground of fraud, duress, unconscionable consideration, mutual or unilateral mistake, whether of law or fact, or any other ground cognizable by a court of equity." The tribe's claim that the Army Corps of Engineers owed it a duty under the National Historical Preservation Act to "locate, inventory and nominate for inclusion in the National Register all Native American cultural items and other historic properties within the recreation areas and other lands" in the former Great Sioux Reservation is too general to establish a "clear and compelling" duty on the part of the corps that is enforceable under the Mandamus Act, 28 U.S.C. § 1361.

Arctic Slope Native Association v. Sebelius
Briefs & Pleadings
Docket No. 09-1172

Subjects: not yet available

*Issues: Contrary to the decisions of three other circuits and this court's precedents, did the Federal Circuit err in holding that the filing of a class action against the government does not toll the deadline for asserted class members to exhaust their administrative remedies?

History: Petition was filed on 03/26/10. Petition was denied on 6/28/10.

*Holding below: Arctic Slope Native Association, LTD. v. Sebelius , 583 F.3d 785. The six-year limitations period for a contractor to file a claim against the government with a contracting officer, established in Section 605(a) of the Contract Disputes Act, 41 U.S.C. § 605(a), is not subject to tolling due to the filing of a class action against the government when the claimant, by failing to make a timely presentment of its claims to a contracting officer as required by the act, would not have been eligible to be a class member.

Jeffredo v. Macarro
Briefs & Pleadings
Docket No. 09-1137

Subjects: not yet available

*Issues: (1) Is the writ of habeas corpus under ICRA limited solely to tribal criminal proceedings instead of also including tribal civil proceedings that result in the disenrollment of life-long tribal citizens? (2) Does the combination of "disenrollment," which is the stripping away of petitioners' life-long tribal citizenship and the current and potential restrictions placed on petitioners, constitute a severe restraint on their liberty so as to satisfy the "detention" requirements of Section 1303 of ICRA? (3) Does the disenrollment of life-long tribal members, by itself, constitute a severe restraint of liberty so as to satisfy the "detention" requirement of ICRA? (4) Did the petitioners exhaust their tribal remedies by going through every Pechanga Tribal appeal proceeding available to contest their disenrollment?

History: Petition was filed on 03/18/10. Petition was denied on 5/24/10.

*Holding below: Jeffredo v. Macarro , 2009 WL 4912143. Knowing that federal courts generally lack jurisdiction to hear appeals from tribal decisions to disenroll tribal members, disenrolled tribal members brought a petition for habeas corpus under Section 1303 of the Indian Civil Rights Act and claimed that their disenrollment from the Pechanga Tribe was tantamount to an unlawful detention. The trial court properly dismissed the petition for lack of jurisdiction, because neither prerequisite for hearing a habeas petition under ICRA--the petitioner must be in custody and must first exhaust tribal remedies--was satisfied. Additionally, some courts have imposed a third requirement--that the tribal proceedings be criminal. Neither the denial of access to tribal facilities (senior citizens center, health clinic, and tribal school), the continuing threat of banishment from tribal lands, nor the stripping of petitioners' Pechanga citizenship is enough of a significant restraint on liberty to constitute a detention. The petitioners' claim that disenrollment is similar to banishment from the reservation and therefore amounts to a detention is without merit. In any event, the petitioners have not exhausted tribal remedies for exclusion from the reservation, because they have not been excluded. Finally, the disenrollment of petitioners was not criminal in nature, and Section 1303 applies only to tribal criminal proceedings.

Sharp v. United States
Briefs & Pleadings
Docket No. 09-820

Subjects: Water Law

*Issues: (1) As a matter of federal law, when owners of real property abutting navigable waters lawfully erect a shore defense structure on their own uplands, does the shore defense structure constitute a trespass against the tideland owner if subsequent erosion causes the mean high water line to contact the seaward face of that shore defense structure? (2) As a matter of federal law, does an owner of tidelands underlying navigable waters have a vested right to the unabated erosion of abutting uplands as they would exist in their natural state--a right that is superior to the upland owner's right to erect shore defense structures? (3) Is an owner of upland property strictly liable under Section 10 of the 1899 Rivers and Harbors Appropriation Act for erecting a shore defense structure without a federal permit when, at the time of its original construction, the shore defense structure was erected entirely out of navigable waters of the United States? (4) Is injunctive relief under the 1899 Rivers and Harbors Appropriation Act exempt from the general requirement that courts balance competing equitable interests before issuing an injunction? (5) Is the general disclaimer in the Washington Enabling Act that disclaims title to "all lands lying within [the state] owned or held by an Indian or Indian tribes" sufficient to demonstrate the requisite congressional intent to overcome the presumption that tidelands are held in trust for the State of Washington?

History: Petition was filed on 01/7/10. Petition was denied on 5/17/10.

*Holding below: United States v. Milner , 583 F.3d 1174. Homeowners whose shorefront properties adjoin tidelands are liable for common law trespass because the ambulatory tideland property boundary has, as a result of erosion over a period of years, come to intersect the shore defense structures that were originally erected by the homeowners on their own properties but that now, because of the erosion, sit seaward of the mean high water line and thus within the tidelands owned by the United States in trust for an Indian tribe. An executive order issued in 1873 by President Grant that expanded the tribe's reservation boundaries to include these tidelands was sufficient to prevent ownership of the tidelands from passing to the State of Washington, under the equal footing doctrine, upon its admission to statehood. Moreover, the state has expressly declined to claim ownership of the tidelands and to intervene in this case. Given that the tribe has a vested right to the ambulatory boundary and to the tidelands it would gain if the boundary were allowed to ambulate, the homeowners do not have the right to permanently fix the property boundary without consent from either the United States or the tribe. That the shore defense structures may have been legal when initially erected is no defense to the trespass action. Similarly, although the homeowners' structures were lawful when erected, the homeowners violated Section 10 of the 1899 Rivers and Harbors Appropriation Act when, following the erosion that resulted in the structures being obstructions in navigable waters, they refused to remove the structures or obtain authorization to maintain them in navigable water from the Army Corps of Engineers. Accordingly, the district court did not abuse its discretion when it imposed an injunction under Section 12 of the 1899 Rivers and Harbors Appropriation Act. No balancing of interest or need to show irreparable injury is required when an injunction is sought under Section 12 to prevent erection or seek removal of an unlawful structure.

Related News Stories: Supreme Court declines to hear Lummi Nation trespass case. (Indianz.com) 5/17/10.

Ute Distribution Corp. v. Salazar
Briefs & Pleadings
Docket No. 09-1103

Subjects: not yet available

*Issues: (1) Is 28 U.S.C. § 2401(a) a jurisdictional statute? (2) Is it contrary to United States v. Taylor, 104 U.S. 216 (1881), for a limitations period to accrue against a beneficiary before funds are placed in trust and before the trustee repudiates the trust? (3) When a beneficiary alleges mismanagement and loss, is it contrary to Pub. L. No. 108-108, 117 Stat. 1241, for a limitations period to expire even though the trustee has never provided an accounting? (4) Is it contrary to Morley Constr. Co. v. Md. Casualty Co., 300 U.S. 185 (1937), and United States v. Am. Ry. Express, 265 U.S. 425 (1924), for the court of appeals to reverse an adverse limitations ruling against an appellee, when the appellee failed to cross-appeal, and reversal on the limitations issue enlarges the appellee's rights and lessens the appellant's rights? (5) Is it contrary to Anderson v. Liberty Lobby Inc., 477 U.S. 242 (1986), and Fed. R. Civ. P. 12(b)(6) and 56, for the court of appeals to reverse an unappealed adverse limitations ruling against the appellee, when facts establishing accrual are disputed and dependent on outcome of the substantive issue appealed by the appellant, and the appellate court did not review the substantive issue?

History: Petition was filed on 03/12/10. Petition was denied on 5/17/10.

*Holding below: Ute Distribution Corporation v. Secretary of the Interior of the United States, 2009 WL 3336097. The secretary of the interior's 1961 approval of the plan of division under the 1954 Ute Partition and Termination Act (UPA) was a single, discrete event associated with the UPA by which all of the Ute tribe's assets were either divided between the so-called mixed-bloods and full-bloods, or retained by the United States on behalf of, and to be jointly managed by, those two groups. As a result, the mixed-bloods knew or should have known that any claims asserting improper division of those assets would need to be filed within six years of the date of the secretary's approval of the plan of division, in accordance with the six-year general statute of limitations on claims against the United States established by 28 U.S.C. § 2401. This suit, filed in 1995, alleging that the plan of division did not provide for equitable and practicable distribution of water rights, is thus time-barred. The government's statute of limitations argument merely provides an alternative rationale, based on materials well developed in the record, for affirming the dismissal of the plaintiffs' claims for relief without enlarging the government's rights or lessening the plaintiff's rights, and thus may be asserted without a cross-appeal.

Attea v. Dept. Taxation and Finance of New York
Briefs & Pleadings
Docket No. 09-910

Subjects: not yet available

*Issues: (1) Does New York State usurp Congress's plenary power to regulate commerce with the Indian tribes under art. I, § 8, cl. 3 of the U.S. Constitution by imposing a direct tax and onerous record-keeping burdens directly on a federally licensed Indian trader? (2) If Indian trader income is state taxable, does New York State violate a nonresident's due process rights and the Commerce Clause by taxing an indiscriminate amount of a nonresident's income solely because there is insufficient proof to show the amount of income allocable to out-of-state sources?

History: Petition was filed on 01/25/10. Petition was denied on 5/3/10.

*Holding below: Attea v. Tax Appeals Tribunal , 64 A.D.3d 909 The taxpayer, a federally licensed Indian trader and resident of Tennessee who engages in wholesale distribution of tobacco products, failed to prove by clear and convincing evidence that he traded exclusively with Native Americans residing on reservations. Although the taxpayer produced documents indicating that he imported and shipped tobacco products to Indian reservations, these records included no "books of original entry" for his business, such as sales journals, general ledgers, balance sheets, expense receipts, income statements, or bank statements. In light of these deficiencies, the Tax Appeals Tribunal was unable to substantiate that the sales made by the taxpayer actually took place on reservations and were made to qualified tribal members--as required by the taxpayer's Indian trader licenses--or to formulate any allocation of what percentage of the taxpayer's sales might be exempt, and thus its assessment of New York personal income tax on 100 percent of the taxpayer's income is upheld. In addition, the taxpayer has not established by clear and cogent evidence that the taxes imposed were violative of the U.S. Constitution.

Dickson v. San Juan County
Briefs & Pleadings
Docket No. 09-997

Subjects: not yet available

*Issues: (1) Is the question of Navajo civil jurisdiction over non-Indian defendants a "judiciable" question, within an Article III court's authority to define? (2) Is Fed. R. Civ. P. 16 vague and does it unconstitutionally give federal district courts unfettered discretion to dismiss sua sponte "frivolous" claims?

History: Petition was filed on 02/16/10. Petition was denied on 4/26/10.

*Holding below: Dickson v. San Juan County, 2009 WL 4680557. The district court ruling that the law of the case doctrine prevented it from considering the plaintiffs' new legal theories that a Navajo Nation tribal court had subject matter jurisdiction over the defendants, notwithstanding the Tenth Circuit's decision to the contrary, and the district court's order granting defendants' motion to enjoin the plaintiffs from initiating any further proceedings against them, are affirmed. Under Montana v. United States, 450 U.S. 544 (1981), the tribal court lacked subject matter jurisdiction to exercise civil authority over the conduct of defendants who are not tribal members.

Zephier v. United States
Briefs & Pleadings
Docket No. 09-580

Subjects: Trust Lands

*Issues: (1) Did the Federal Circuit err in failing to recognize the existence of a trust corpus in property and beneficiary rights for and on behalf of the lineal descendents of the Loyal Mdewakantons, from the March 3, 1863 Act and that the existing trust corpus was intended to be implemented and enhanced by the subsequent legislation found in the Appropriations Acts of 1888, 1889, 1890, and 1980?
(2) Did the Federal Circuit err in not applying the doctrine of judicial estoppel as set forth in New Hampshire v. Maine, 532 U.S. 742 (2001), and thus allowing the United States to argue the existence of a trust and obtain a favorable result in the Eighth Circuit, Cermak v. United States, 478 F.3d 953 (8th Cir. 2007), and to argue the lack of a trust and obtain a favorable result in the Federal Circuit, Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), thereby creating a split in the circuits?

History: Petition was filed on 11/06/09. Petition was denied 4/19/10.

*Holding below: The Appropriations Acts of 1888, 1889, and 1890 authorized the secretary of the interior to spend appropriated funds as he saw fit for the benefit of the "loyal Mdewakantons," a band of the Sioux tribe that had remained loyal to the United States during the 1862 Sioux rebellion against the United States, and who were living in Minnesota as of May 20, 1886. The acts did not, however, create a trust for the Mdewakantons and their lineal descendants and did not give the Mdewakantons vested rights that reflected beneficial ownership interests in land purchased by the secretary with those funds for their benefit ("the 1886 lands"). Instead, the acts simply gave the secretary the right to purchase land and other assets to be used, subject to the secretary's discretion, for the benefit of the Mdewakantons and their families, and the Mdewakantons and their descendants who were assigned plots from the 1886 lands were simply limited to temporary use and occupancy of those plots. In addition, under 1980 legislation terminating the land assignment system and providing that the 1886 lands would be held in trust by the United States for the three Mdewakanton communities in Minnesota, the lineal descendants of the loyal Mdewakantons retained no rights in the lands (which have become extremely valuable because of casino gambling thereon) except insofar as they were enrolled members of one of the three communities or were entitled, under the 1980 act's savings clause, to occupancy rights based on prior assignments to portions of the 1886 lands. There is no merit to the contention that Carcieri v. Salazar, 77 U.S.L.W. 4113 (U.S. 2009)--which involved interpretation of part of the 1934 Indian Reorganization Act--supports the argument that the three appropriations acts created a trust for the Mdewakantons and their descendants. Carcieri is in no way relevant to that issue. Finally, even if the three appropriations acts were construed as creating a trust relationship by implication or by operation of law, the 1980 act terminated that trust.

Wolfchild v. United States
Briefs & Pleadings
Docket No. 09-579

Subjects: Fiduciary accountability -- United States; Trusts and trustees – Accounting; Breach of trust -- United States; Mdewakanton Indians; Jurisdiction -- United States; United States. Court of Federal Claims.

*Issues: (1) After Carcieri , does federal court subject mater jurisdiction exist over Native American beneficiary claims of purported federal government violations of the 1934 Indian Reorganization Act or other applicable federal statutes when post-1934 IRA non-tribal community governments are involved? (2) Does the Federal Circuit's holding of "statutory use restrictions" in congressional appropriation acts establishing statutory obligations on the United States, but no "trust," depart from applicable statutory interpretation and trust principles set forth in United States v. Mitchell, 463 U.S. 206 (1983), and its progeny? (3) Does the Federal Circuit's holding that a 1980 congressional act terminated a trust impermissibly conflict with the First Circuit's decision in Passamaquoddy Tribe v. Morton, 528 F.3d 370 (1st Cir. 1979), in that the Federal Circuit failed to consider the 1934 IRA's extension of all Native American trusts under 25 U.S.C. § 462 and failed to apply the "clear and unambiguous requirement" for a trust termination act?

History: Petition was filed on 11/6/09. Petition was denied 4/19/10.

*Holding below: The Appropriations Acts of 1888, 1889, and 1890 authorized the secretary of the interior to spend appropriated funds as he saw fit for the benefit of the "loyal Mdewakantons," a band of the Sioux tribe that had remained loyal to the United States during the 1862 Sioux rebellion against the United States, and who were living in Minnesota as of May 20, 1886. The acts did not, however, create a trust for the Mdewakantons and their lineal descendants and did not give the Mdewakantons vested rights that reflected beneficial ownership interests in land purchased by the secretary with those funds for their benefit ("the 1886 lands"). Instead, the acts simply gave the secretary the right to purchase land and other assets to be used, subject to the secretary's discretion, for the benefit of the Mdewakantons and their families, and the Mdewakantons and their descendants who were assigned plots from the 1886 lands were simply limited to temporary use and occupancy of those plots. In addition, under 1980 legislation terminating the land assignment system and providing that the 1886 lands would be held in trust by the United States for the three Mdewakanton communities in Minnesota, the lineal descendants of the loyal Mdewakantons retained no rights in the lands (which have become extremely valuable because of casino gambling thereon) except insofar as they were enrolled members of one of the three communities or were entitled, under the 1980 act's savings clause, to occupancy rights based on prior assignments to portions of the 1886 lands. There is no merit to the contention that Carcieri v. Salazar, 77 U.S.L.W. 4113 (U.S. 2009)--which involved interpretation of part of the 1934 Indian Reorganization Act--supports the argument that the three appropriations acts created a trust for the Mdewakantons and their descendants. Carcieri is in no way relevant to that issue. Finally, even if the three appropriations acts were construed as creating a trust relationship by implication or by operation of law, the 1980 act terminated that trust.

Related News Stories: Supreme Court rejects suit over tribes' casino wealth (ScrippsNews) 4/20/10 Supreme Court rejects suit over tribes’ casino wealth (StarTribune) 4/10/10

North County Community Alliance, Inc. v. Salazar
Briefs & Pleadings
Docket No. 09-800

Subjects: Indian gaming; Casinos; Environmental impact statements; Nooksack Indian Tribe of Washington; United States. National Environmental Policy Act of 1969; United States. Indian Gaming Regulatory Act; North Country Community Alliance, Inc.; National Indian Gaming Commission (U.S.); United States. Dept. of the Interior.

*Issues: (1) Must the NIGC establish its jurisdiction over a tribe's potential gaming sites, by determining that such sites qualify as "Indian lands," before approving the tribe's gaming ordinance? (2) Does the NIGC act ultra vires when it approves a tribal gaming ordinance that allows construction and operation of a gaming facility on land that is never determined to be "Indian lands"?

History: Petition was filed on 1/04/10. Petition was denied 4/19/10.

*Holding below: The Indian Gaming Regulatory Act, which requires Indian tribes to receive the National Indian Gaming Commission's approval before engaging in certain gaming activities (bingo, card games, and slot machines) and limits tribal gaming to locations on "Indian lands," does not require the NIGC to determine whether an Indian tribe's proposed gaming facility would be on Indian land prior to approving the gaming ordinance submitted by a tribe that did not specify any gaming sites. Nor does the act require the NIGC to make an Indian lands determination prior to construction of a gaming facility already authorized by such a non-site-specific ordinance.
Affirmed.

Related News Stories: Cert petition filed over Nooksack Casino (Turtle Talk Blog) 1/8/10

Davis v. Minnesota
Briefs & Pleadings
Docket No. 09-1002

Subjects: State Court Jurisdiction

*Issues: (1) Has the State of Minnesota infringed upon the right to tribal self-government of the Minnesota Chippewa Tribe? (2) Is the assertion of state civil regulatory authority in this matter preempted under Public Law 280 exceptions?

History: Petition was filed on 02/16/10. Petition was denied 4/19/10.

*Holding below: State v. Davis , 2009 WL 2878109. The prosecution in state court of an Indian driver, who was a member of the Leech Lake Band of the Minnesota Chippewa Tribe, for violating state traffic laws on a state highway running through land that belonged to the Mille Lacs Band of that tribe, does not interfere with, and is not incompatible with, federal and tribal interests, including the interest in self-governance of the Minnesota Chippewa Tribe, which does not have a judicial or a legislative branch and has not been delegated the requisite authority to govern the offenses in this case by the Mille Lacs Band. Accordingly, Minnesota's traffic laws may be enforced against the Indian motorist, even though they are civil/regulatory laws that, under different circumstances, are exempt from the provisions of Public Law 280, which grants Minnesota and five other states jurisdiction over certain civil and criminal matters committed on Indian reservations, but limits such jurisdiction to criminal and private civil matters only and excludes civil/regulatory matters from state court jurisdiction.

Stymiest v. United States
Briefs & Pleadings
Docket No. 09-9420

Subjects: not yet available

*Issues: not yet available

History: Petition was filed on 03/02/10. Petition was denied on 4/5/10.

*Holding below: United States v. Stymiest , 2009 WL 2998063. (from Westlaw) The Court of Appeals, Loken, Chief Judge, held that:
(1) district court did not abuse its discretion in overruling defendant's objections to jury instruction; (2) sufficient evidence supported jury's finding that defendant was an Indian for purposes of statute governing crimes committed in Indian country;
(3) jury instruction did not constructively amend indictment;
(4) district court did not abuse its discretion by allowing witness to testify that defendant took a knife from kitchen and left in pursuit of victim; and
(5) defendant's third-degree burglary conviction was a “crime of violence” under the Armed Career Criminal Act (ACCA).
Affirmed.

Rosenberg v. Hualapai Indian Nation
Briefs & Pleadings
Docket No. 09-742

Subjects: Personal Injury; Sovereign Immunity

*Issues: (1) Does the sovereign immunity of an Indian tribe extend to off-Indian Country (extra-territorial), tortious conduct? (2) Does Congress, and Congress alone, have the authority to establish the boundaries of tribal sovereign immunity, a judicially created doctrine, or may the U.S. Supreme Court define its outer boundaries, as this court suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies Inc., 523 U.S. 751 (1998)? (3) Is tribal sovereign immunity broader than the immunity provided to foreign sovereign nations? (4) Does a tribe waive its sovereign immunity by engaging in conduct that would lead a reasonable person to believe that he or she might have recourse in a court of competent jurisdiction for the negligent acts of the tribe?

History: Petition was filed on 11/06/09. Petition was denied 03/29/10.

*Holding below: The Hualapai Indian Nation, a federally recognized sovereign nation, is immune from a personal injury lawsuit by an individual injured during a rafting excursion on the Colorado River, conducted by a tribal business, outside the boundaries of the tribe's reservation. Because only Congress can limit the scope of tribal immunity, and it has not done so, the tribes retain the immunity sovereigns enjoyed at common law, including its extra-territorial component. Congress, not the judiciary, sets the parameters of tribal immunity; the courts merely interpret Congress's intent. Congressional limits on the immunity of foreign sovereigns simply underscore the breadth of tribal sovereign immunity; tribal immunity is not coextensive with foreign sovereign immunity. The court rejects the plaintiff's contention that, even if the tribe initially enjoyed immunity, it waived that protection when it required him to sign a release that releases the tribe from all liability and damages, and states that "by signing this document I may be waiving valuable legal rights."

Shinnecock Smoke Shop v. Kappo
Briefs & Pleadings
Docket No. 09-635

Subjects: Trademarks, Race Discrimination

*Issues: (1) May petitioner's Native American trademark application be denied on the erroneous basis that his Native American tribe is a "person" or "institution" under Section 2(a) of the Trademark Act? (2) Did the Native American petitioner make a prima facie showing of illegal racial discrimination by a documented pattern of trademark registration of similarly situated trademarks granted to non-Native American applicants?

History: Petition was filed 11/25/09. Petiton was denied 01/19/10.

*Holding below: In re Shinnecock Smoke Shop, 571 F.3d 1171 Applications submitted by a member of the Shinnecock Indian Nation that sought to register trademarks for a Shinnecock brand of cigarettes, and that included the wording "Made Under Sovereign Authority," were properly rejected under Section 2(a) of the Trademark Act, which generally forbids registration of marks that "falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols." Contrary to the applicant's contention, the Shinnecock Indian Nation is an "institution" within the meaning of Section 2(a). The applicant's claim that the "institution" issue was not raised below is meritless. While the United States Patent and Trademark Office's examining attorney focused on the Shinnecock Indian Nation as a "juristic person," she apparently did so based on her understanding that "person," "juristic person," and "institution" all have the same meaning. There is no merit to the applicant's contention that the PTO's refusal to register his marks, when contrasted to its grant of applications to non-Indians for similar marks involving Indian tribal names, shows a pattern of racial discrimination.

Harvest Institute Freedman Federation v. United States
Briefs & Pleadings
Docket No. 09-585

Subjects: Trustee, Statute of Limitations

*Issues: Did the Federal Circuit erroneously affirm dismissal under 28 U.S.C. § 2501 of petitioners' claims without addressing in any manner whatsoever petitioners' repudiation rule argument that the statute of limitations does not begin to run on claims by a trust beneficiary like petitioners' claims, against a trustee, here the United States, to enforce the terms of a trust until the trustee repudiates the trust relationship, something that to date the United States has not done?

History: Petition was filed on 11/10/09. Petition was denied 01/19/10.

*Holding below: Harvest Institute Freedman Federation v. United States, 2009 WL 1336710 The court affirms, without comment, a decision of the U.S. Court of Federal Claims that a six-year statute of limitations bars claims for declaratory and monetary relief for an alleged breach of post-Civil War treaties--between the United States and the five slave-owning Native American tribes that fought for the Confederacy during the Civil War--that prohibited slavery, gave the freed slaves equal rights as members of the tribes, and provided land allotments for the former slaves. The Court of Federal Claims explained that the claims accrued at the latest in 1902, that the continuing claims doctrine is inapplicable, and that the treaties, even if breached, did not require the government to pay money damages.


Roy v. Minnesota
Briefs & Pleadings
Docket No. 09-436

Subjects: United States. Public Law 280; Firearms -- Law and legislation; Jurisdiction -- Minnesota; Criminal actions arising on Indian reservations -- Fond du Lac Band of Chippewa Indians.

*Issues: (1) Does the state of Minnesota lack subject-matter jurisdiction over the present controversy because possession of firearms is "civil-regulatory" in this particular case? (2) Does the petitioner have a right to possess firearms that is protected as a reserved right in the 1854 and 1855 treaties with the Chippewa? (3) Did the Minnesota appellate court improperly deny review of this matter because the Minnesota Court of Appeals failed to address or review the relevant and applicable 1854 and 1855 treaties with the Chippewa? (4) Do petitioner's treaty rights belong to him as an individual as well as a tribal and band member of the Minnesota Chippewa tribe, as well as collectively to the bands that are signatory to the treaties of 1854 and 1855? (5) Does the petitioner have a treaty right to possess firearms as a pre-existing right in light of this court's decision in District of Columbia v. Heller, 76 U.S.L.W. 4631 (U.S. 2008)?

History: Petition for certiorari was filed on 9/14/09. Petition was denied 12/14/09.

*Holding below: State v. Roy, 761 N.W.2d 883, The broad grant of criminal jurisdiction in Pub. L. No. 83-280 (1953), codified as amended at 18 U.S.C. § 1162 and 28 U.S.C. § 1360, which authorizes state jurisdiction over offenses committed by or against Indians in Indian country, confers upon the state of Minnesota jurisdiction to enforce its law, banning possession of a firearm by a convicted felon, against an enrolled member of an Indian tribe who lives on, and whose offense was committed on, the reservation, because, contrary to the defendant's arguments, the state statute is criminal/prohibitory and not civil/regulatory. The right to hunt on the reservation that is granted to the defendant's tribe by treaties with the United States is a collective, not a personal, right that belongs to the tribe as a whole, and not to any individual member of the tribe, and thus the treaties are not implicated by the limitation on the defendant's ability to lawfully possess a firearm and the resulting impact on his ability to enjoy his tribe's treaty hunting rights as a consequence of his own criminal conduct.

Smith v. Commissioner of Internal Revenue Service
Briefs & Pleadings
Docket No. 09-512

Subjects: Jurisdiction; Taxation; Injunctions.

*Issues: (1) Is a "rebate" to a reservation Indian income? (2) Is a district court barred by statute from exercising subject matter jurisdiction when an Indian treaty provides a free trade right and a procedural dispute resolution right? (3) Should this court overturn Cherokee Nation v. Georgia, 30 U.S. 1 (1831), insofar as the case provides the legal underpinning of U.S. jurisdiction over Indian reservations, when this court interpreted the Commerce Clause language of "with" to mean "over" and found Indian tribes to be "domestic dependent nations" rather than "foreign nations," an error in constitutional interpretation and a historical wrong against Native Americans?

History: Petition for certiorari was filed on 10/28/09. Petition was denied on 12/7/09.

*Holding below: Smith v. Shulman, 2009 WL 1698109 , The district court's dismissal, for lack of subject matter jurisdiction, of a complaint against the commissioner of internal revenue by a member of an Indian nation who sought a refund, injunctive relief, and a declaration that the Internal Revenue Service unlawfully assessed him taxes, penalties, and interest on income that he earned on the reservation in tax year 2000 is affirmed. To the extent the taxpayer is trying to appeal the adverse decision of the due process officer, the taxpayer's proper recourse was to appeal to the U.S. Tax Court, which has exclusive jurisdiction over such matters. The taxpayer's bid for an injunction against the IRS is barred by the Tax Injunction Act, and the taxpayer has shown no reason why that bar should not apply. Similarly, the Declaratory Judgment Act prevented the district court from issuing declaratory relief. As for the refund claim, the taxpayer failed to file an administrative claim and pay the tax in full before filing suit in district court, as required by federal statute.

Benally v. United States
Briefs & Pleadings
Docket No. 09-5429

Subjects: Jury selection; United States. Bureau of Indian Affairs -- Police; Assault and battery; Evidence (Law); Impartiality.

*Issues: not yet available

History: Petition for certiorari was filed on 7/20/09. Petition was denied on 11/30/09.

*Holding below: United States v. Benally, 546 F.3d 1230 (from Westlaw) The Court of Appeals, McConnell, Circuit Judge, held that:
(1) evidence that jurors expressed racial bias during deliberations fell within scope of evidence rule prohibiting admission of evidence of statements made during jury deliberations;
(2) jurors' alleged statements did not fall within scope of exception for extraneous prejudicial information; and
(3) defendant's Sixth Amendment right to impartial jury did not bar application of evidence rule. Reversed.

Pyke v. Cuomo
Briefs & Pleadings
Docket No. 09-242

Subjects: Race discrimination -- New York (State); Discrimination in law enforcement -- New York (State); Equality before the law -- United States.

*Issues: (1) Must a summary judgment motion that turns on the adequacy of the plaintiffs' evidence of intentional discrimination be denied when a "plausible" inference of invidious intent can be drawn from all of the evidence, circumstantial and direct, taken as a whole? (2) Should the U.S. Supreme Court resolve a conflict among the circuits on the issue of what standards to apply in considering the strength of summary judgment evidence in cases of alleged intentional discrimination? (3) Did Congress's enactment of 25 U.S.C. § 232 obviate any distinctions based on geography or sovereignty regarding New York's duty to provide police protection to Native American residents of reservations within the state?

History: Petition for certiorari was filed on 8/25/09. Petition was denied on 11/30/09.

*Holding below: Pyke v. Cuomo, 567 F.3d 74. Equal protection claims by Native Americans, alleging that their rights were violated during unrest on their reservation by an inadequate and at times harmful response from state officials that contributed to millions of dollars in property damage and the deaths of two young tribal members, are rejected. The plaintiffs cite three policies that they allege involve express racial classification occurring during the strife: (i) state officials set up roadblocks at the edge of the reservation either to stop nonresidents from entering the reservation or to give them information about the ongoing strife, (ii) state officials informed the Warrior Society--a heavily armed organization allegedly responsible for criminal violence on the reservation--before police entered the reservation in response to calls, and (iii) state officials stopped regular patrols inside the reservation. None of these actions amounted to express racial classification. The roadblocks were not a racial classification because they were directed at an area, not a racial class. Warning the Warrior Society was also not a racial classification, but instead, was a way for the police to avoid a potentially violent standoff with the group, "and perhaps even show respect for the sovereignty of the Mohawks." The suspension of patrols was not a racial classification for similar reasons. Assuming without deciding that the plaintiffs have shown the existence of a discriminatory impact, they have failed to proffer enough evidence of discriminatory intent to survive summary judgment.

Elliot v. White Mountain Apache Tribal Court
Briefs & Pleadings
Docket No. 09-187

Subjects: Non-Indians; Law -- Tribes -- Application -- Non-members of a tribe; Civil actions arising on Indian reservations; Forest fires; Tribal courts; Jurisdiction -- Tribes; Exhaustion of tribal remedies; White Mountain Apache Tribe of the Fort Apache Reservation, Arizona.

*Issues: Can a tribal court assert jurisdiction over a nonconsenting, non-Indian litigant and force her to defend against civil claims in that unfamiliar forum when it is plain that the tribal court has neither regulatory nor adjudicatory jurisdiction and when the conduct at issue by the non-Indian on tribal land does not and cannot ever threaten or directly affect the political integrity, economic security, or the health or welfare of the tribe?

History: Petition for certiorari was filed on 8/11/09. Petition was denied on 11/16/09.

*Holding below: Elliot v. White Mountain Apache Tribal Court, 566 F.3d 842 Tribal court jurisdiction over a Native American tribe's civil action against a non-Indian defendant is plausible in a case in which the tribe seeks civil penalties and an order of restitution from the defendant after the signal fire that she had set on tribal land to facilitate her rescue while she was lost grew into a substantial forest fire that caused extensive damage to the tribe's natural resources. Accordingly, under principles of comity, the federal courts must decline to entertain the non-Indian defendant's action for injunctive and declaratory relief against the tribe, a tribal judge, and a tribal court, challenging the tribal court's jurisdiction, until the non-Indian defendant has exhausted her tribal remedies.

Harjo v. Pro-Football
Briefs & Pleadings
Docket No. 09-326

Subjects: Trademarks

*Issues: Is the doctrine of laches applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act despite the plain meaning of the statutory language stating that such a petition may be filed "at any time"?

History: Petition for certiorari was filed on 9/14/09. Petition was denied on 11/16/09.

*Holding below: Pro-Football v. Harjo, 565 F.3d 880, The district court did not abuse its discretion when it found both trial and economic prejudice sufficient to support a defense of laches to a lawsuit alleging that various trademarks related to the Washington Redskins football team disparage Native Americans within the meaning of the Lanham Act, and seeking cancellation of the marks. The period between the youngest plaintiff's reaching the age of majority, which triggers any period of unjustifiable delay in his filing suit, and the date on which the lawsuit was filed was seven years and nine months (the "delay period"), a delay made only more unreasonable by the plaintiff's acknowledged exposure to the various Redskins trademarks well before reaching his majority. The trial prejudice stems from both the death of former Redskins president Edward Bennett Williams, who had met with Native American leaders to discuss their views close to the time of the marks' registration in 1967, as well as the delay period's general contribution to the time lapse from the date of registration, both of which limited the team's ability to marshal evidence, including contemporaneous evidence of public attitudes, supporting its mark. The economic prejudice consists of a significant expansion of Redskins merchandising efforts and a sizable investment in the marks during the delay period.

Related News Stories: Supreme Court refuses to hear Redskins' naming case. (Washington Post) 11/16/09.

Barrett v. United States
Briefs & Pleadings
Docket No. 09-32

Subjects: Income tax -- Citizen Potawatomi Nation, Oklahoma -- Members; United States. Internal Revenue Service; Tribal trust funds -- Citizen Potawatomi Nation, Oklahoma; Citizen Potawatomi Nation, Oklahoma -- Officials and employees -- Salaries.

*Issues: (1) Can an Indian tribe use Indians Claims Commission Act funds, appropriated by Congress and distributed to the tribe with a specific exemption from federal income tax, to pay federal income tax exempted salaries to elected officials the tribe is required to have under its tribal constitution? (2) Does the imposition of a penalty by the IRS against the tribal chairman for sovereign legislative actions of the tribe improperly infringe on the tribe's sovereign powers?

History: Petition for certiorari was filed on 7/06/09. Petition was denied on 10/13/09.

*Holding below: Barrett v. United States, 561 F.3d 1140. A federal district court's ruling that the salary paid to the chairman of a federally recognized tribe of American Indians was not exempt from federal income tax is affirmed, along with the consequent grant of summary judgment in favor of the United States in the chairman's suit seeking a refund of federal income taxes, penalties, and interest that he paid in accordance with an Internal Revenue Service assessment. The tribal chairman's contention that his compensation was not taxable because the source of the funds used to pay him was earnings on tribal trust funds, previously awarded to the tribe by the Indian Claims Commission, that are tax exempt as "development" expenses, is without merit, given that the chairman's compensation for the oversight of day-to-day operations cannot be said to fall into the definition of that term in the use and distribution plan developed by the tribe and the secretary of the interior for those funds: "those activities and/or actions undertaken by the Tribe to in some way cause growth, building up, expansion, strengthening, increased effectiveness or other evolutionary process toward the progress of the Tribe economically and/or socially, and/or governmentally." In addition, even if the chairman's compensation satisfied the intended-use criteria of the trust fund earnings, the tax exemption reference in the use and distribution plan is not sufficiently specific to exempt the chairman's salary from federal taxation. The record also supports the 20 percent accuracy-related penalty imposed on the taxpayer under I.R.C. § 6662 on the portion of underpayment of tax attributable to negligence or disregard of rules or regulations, because the taxpayer's determination that the salary he received as chairman of the tribe was tax-exempt was not reasonable in light of his experience, knowledge, and education.

Hendrix v. Coffey
Docket No. 08-1306

Subjects: Disenrollment; Tribal membership disputes; Jurisdiction.

*Issues: Did lower courts wrongly deny petitioners opportunity to attack their disenrollment as violation of due process and equal protection?

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

*Holding below: Hendrix v. Coffey, 305 Fed. Appx. 495. Claims relating to disenrollment from membership in Native American tribe are matters of internal tribal concern, and thus were properly dismissed by district court for lack of subject matter jurisdiction.

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