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2011-2012 Supreme Court Term: October 2011 - July 2012

Last Updated: August 23, 2012

The 2011-2012 term has closed.


Covering: Supreme Court cases from the 2011 term impacting Native Americans

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


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Cases Decided

Three Native American law cases have been decided by the U.S. Supreme Court in the 2011-2012 term.

Ken Salazar, Secretary of Interior v. Ramah Navajo Chapter
Briefs and Pleadings
Docket No. 11-551

*Issues: Is the government required to pay all of the contract support costs incurred by a tribal contractor under the Indian Self-Determination and Education Assistance Act, where Congress has imposed an express statutory cap on the appropriations available to pay such costs, and the secretary cannot pay all such costs for all tribal contracts without exceeding the statutory cap?

*Summary from U.S. Law Week: The federal government is required to pay the full contract support costs to Native American tribes under the Indian Self-Determination and Education Assistance Act, even though Congress may have appropriated inadequate funds to fulfill the government's contractual obligations to the tribes. The act allows the government to enter into contracts with willing tribes under which the tribes provide education and law enforcement services that otherwise would have been provided by the government. During the fiscal years in question, Congress appropriated adequate funds to pay in full any individual tribal contractor's contract support costs, but did not appropriate funds sufficient to cover the contract support costs due all tribal contractors collectively. The government had been paying the tribes' contract support costs on a uniform, pro rata basis, in the absence of adequate appropriated funds.

History: Petition was filed on 10/31/11. Petition was granted on 1/06/2012. Oral argument was on Arpil 18, 2012. Decided on 6/18/2012.

*Holding Below: Ramah Navajo Chapter v. Salazar, 644 F.3d 1054. The government is liable under the Indian Self-Determination and Education Assistance Act to pay all of a tribe's annual support costs, which are costs a tribe must incur to insure compliance with its self-determination contracts with the government, if the annual appropriations for contract support costs were sufficient to cover any individual contract. The subject to availability clause in the statute frees the government of liability only when congressional decisions standing alone--not discretionary actions--make funds unavailable for a specific contract.

Related News Stories: Supreme Court vindicates tribal contract rights (Indian Country Today) 8/5/12. SCOTUS Blog post 6/18/12. Supreme Court says tribes must be fully reimbursed. (SFGate) 6/18/12. Two Indian Law SCT Arguments Scheduled for April (Turtle Talk) 2/4/12. Supreme Court to rule on federal payment for American Indian tribes (Jurist) 1/9/12.

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
Briefs and Pleadings
Docket No. 11-246 / 11-247

*Issues: (1) Does 5 U.S.C. § 702 waive the sovereign immunity of the United States from a suit challenging its title to lands that it holds in trust for a Native American tribe? (2) Does a private individual who alleges injuries resulting from the operation of a gaming facility on Native American trust land have prudential standing to challenge the decision of the secretary of the interior to take title to that land in trust, on the ground that the decision was not authorized by the Indian Reorganization Act, ch. 576, 48 Stat. 984?

History: Petition was filed on 8/25/11. Petition was granted on 12/12/11, and consolidated with Docket No.11-247, Salazar v. Patchak (Briefs and Pleadings). Oral argument on April 24, 2012. Oral argument transcript and audio. Decided on 6/18/2012.

*Summary from U.S. Law Week: The United States does not have sovereign immunity under the Quiet Title Act, 86 Stat. 1176, from a suit by a landowner challenging the Secretary of the Interior's right to acquire property in rural Michigan in trust for a Native American tribe that wants operate a casino on it, because the landowner is a neighboring landowner, not a competing claimant to the land, and the QTA therefore does not apply. Instead, the neighboring landowner, who is seeking an injunction declaring that the secretary lacked authority under the Indian Reorganization Act to take title to the land, is covered by general waiver of sovereign immunity in the Administrative Procedure Act. In addition, the neighbor has prudential standing to bring his APA claim.

*Holding below: Patchak v. Salazar, 632 F.3d 702. The private individual challenging the Department of the Interior's action regarding title to land held in trust for a Native American tribe has standing. The zone-of-interests test does not focus on those Congress intended to benefit under a statute, in this case the Indian Reorganization Act, but those who can be expected to police the statute's interests. While the zone-of-interests test is meant only to prevent those with very marginal interests or claims inconsistent with the implicit purposes of a statute from bringing suit, here, the individual has a plausible and strong claim to oppose Native American gaming near his home. Further, while Section 702 of the Administrative Procedure Act provides a waiver of sovereign immunity for nonmonetary actions challenging administrative action, it limits that waiver where another statute forbids such a suit. The court, however, does not agree that the Quiet Title Act serves to forbid the waiver of sovereign immunity because the individual is not bringing a "quiet title" action since he does not allege a claim to rightful title of the land.

Related News Stories: Fitch: Supreme Court decision in Patchak case has mixed credit implications for gaming sector (MarketWatch) 6/19/12. (Supreme Court decision on Gun Lake Casino lawsuit reaches far beyond Michigan (MLive) 6/18/12. Supreme Court: Michigan man's lawsuit over operating American Indian tribe casino can move forward (Detroit Free Press) 6/18/12. Oral argument preview from LII Supreme Court Bulletin. "Lands into Trust" -- Supreme Court to Hear Case (Friends' Committee on National Legislation) 4/13/12. Two Indian Law SCT Arguments Scheduled for April (Turtle Talk) 2/4/12. Supreme Court agrees to review Gun Lake casino site case (Indianz.com) 12/12/11. Carcieri-based challenge reaches Supreme Court (Indian Country Today) 08/31/11.

Arctic Slope Native Association v. Sebelius
Briefs and Pleadings
Docket No. 11-83

*Issues: Did the Federal Circuit err in holding, in direct conflict with the Tenth Circuit, that a government contractor that has fully performed its end of the bargain has no remedy when a government agency overcommits itself to other projects and, as a result, does not have enough money left in its annual appropriation to pay the contractor?

History: Petition was filed on 7/18/11. Petition granted, judgment vacated and case remanded for further consideration in light of Salazar v. Ramah Navajo Chapter on 6/25/12.

*Holding below: Arctic Slope Native Association, Ltd. v. Sebelius, 629 F.3d 1296. Under both the Indian Self-Determination Act and contracts between the secretary of health and human services and certain tribes, under which the tribes provide health services that a government agency would otherwise provide, the secretary's obligation to pay contract support cost shortfalls, incurred by the tribes in fulfilling their obligations under the contracts, is subject to the availability of appropriations. Contract support costs are indirect costs, such as administrative expenses incurred by the contractor in connection with the operation of a federal program, that the secretary would not have directly incurred (such as administrative resources that the secretary could draw from other government agencies). In addition, the secretary is not required to reduce funding for other programs, projects, or activities to make funds available to pay a shortfall in contract support costs. Nor is the secretary required to request additional funds. Accordingly, in the absence of adequate appropriations, the secretary is not required to pay the shortfall in contract support costs sought by the tribal agency plaintiff in its breach-of-contract suit against the government.

Related News Stories: Government Acquiesces in Arctic Slope v. Sebelius Cert Petition (Turtle Talk Blog) 11/2/11. Supreme Court puts off action on self-determination litigation (Indianz.com) 11/28/11.

 

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Petition for certiorari pending

Two petitions for writs of certiorari are pending in the 2011-2012 term and were carried over to the 2012-13 term.

Young v. Fitzpatrick
Briefs and Pleadings
Docket No. 11-1485

*Issues: (1) Are police officers employed by an Indian tribe but trained, certified, and cross-commissioned by a state and armed, equipped, and provisioned by the federal government subject to the Constitution, federal civil rights laws, and state tort law? (2) Do the Treaty of Medicine Creek and additional sources of federal and state law preempt any claims of qualified immunity by individual tribal police officers?

History: Petition was filed on 6/4/12.

*Holding Below: Young v. Duenas, 272 P.3d 8513. The defendant officers in this civil action acted within the scope of the authority of the Puyallup Tribe and, therefore, they are protected by the tribe's sovereign immunity.

United States v. Samish Indian Nation
Briefs and Pleadings
Docket No. 11-1448

*Issues: (1) Does the Tucker Act, 28 U.S.C. § 1491(a)(1), or the Indian Tucker Act, 28 U.S.C. § 1505, grant the U.S. Court of Federal Claims subject matter jurisdiction over a Native American tribe's claim for money damages against the United States, based on the United States' purported violation of sources of law that do not themselves mandate a damages remedy for their violation? (2) May the United States be required to pay damages for failing to provide a Native American tribe with a statutorily defined portion of a statutory fund, where Congress enacted limited appropriations for that fund and those appropriations were exhausted over a decade before the tribe filed its action for money damages?

History: Petition was filed on 6/1/12.

*Holding Below: Samish Indian Nation v. United States, 657 F.3d 1330. The Revenue Sharing Act, 31 U.S.C. § 1221 et seq., directs that Native American tribes "shall be allocated" a portion of federal funds distributed to state and local governments based on population. This language makes the act a money-mandating statute. The government's argument that the Anti-Deficiency Act, 31 U.S.C. § 1341, limits recovery in this case fails because the tribe does not seek release of appropriated funds. Rather, it seeks compensation under the Tucker Act, 28 U.S.C. § 1491(a)(1), for damages sustained due to the government's wrongful failure to recognize the tribe and its members' inability to participate in programs to which they were entitled. The U.S. Court of Federal Claims based its analysis of the Anti-Deficiency Act's applicability on cases from other circuits. Those cases involved the limited jurisdiction of district courts in actions brought under the Administrative Procedure Act, 5 U.S.C. § 551 et seq., and are not suits for damages under the Tucker Act. Under the APA, a district court can grant a limited monetary award only if it is in the form of specific relief paid from a particular res. In contrast, the Court of Federal Claims need not identify a res against which a judgment for declaratory or injunctive relief can be paid. Its judgments are paid from the Permanent Judgment Fund, which was established to pay monetary damage judgments entered against the government when other funds are unavailable. The decision of the Court of Federal Claims that the Revenue Sharing Act is a money-mandating statute is affirmed, its decision that the Anti-Deficiency Act limits recovery is reversed, and the case is remanded for further proceedings.


Petition for certiorari denied

Twenty-nine petitions for writs of certiorari were denied in the 2011-2012 term.

Corboy v. Louie
Briefs and Pleadings
Docket No. 11-336

*Issues: Did the Hawaii courts err in failing to recognize that petitioners have standing to seek a refund of their own taxes and that the Equal Protection Clause precludes a state or municipality from creating tax exemptions that are available only to members of a certain race?

History: Petition was filed on 9/15/11. Petition was denied on 6/29/12.

*Holding below: Corboy v. Louie, 2011 WL 1687364. The taxpayers challenging the Hawaiian Homes Commission Act lack standing because they are not interested in participating in becoming homestead lessees under the HHCA, meaning they lack an injury-in-fact. The court therefore did not rule on the equal protection claim alleging the program favored native Hawaiians.

Related News Stories: Supreme Court Denies Cert in Corboy v. Louie (Native Hawaiian-Related Petition) (Turtletalk) 6/29/12.

Sebelius v. Southern Ute Indian Tribe
Briefs and Pleadings
Docket No. 11-762

*Issues: Must the secretary of health and human services accept a Native American tribe's proposal for a new Indian Self-Determination and Education Assistance Act self-determination contract, notwithstanding that the secretary lacks sufficient appropriations under the statutory cap to pay the tribe's proposed contract support costs?

History: Petition was filed on 12/19/11. Petition was denied on 6/25/12.

*Holding Below: Southern Ute Indian Tribe v. Sebelius, 657 F.3d 1071. A self-determination contract under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450f, allows a Native American Tribe to assume direct operation of federal Native American health programs run by the Department of Health and Human Services. The statute's plain language permits HHS to decline a contract only where the proposed support costs exceed the "reasonable costs" of complying with "the terms of the contract and prudent management." The availability of appropriations from Congress is relevant only to the "provision of funds" to the tribe, not the obligation to contract in the first place, and the ISDA does not authorize HHS to decline to contract based solely on insufficient funding.

Nielson v. Ketchum
Briefs and Pleadings
Docket No. 11-680

*Issues: Does a federally recognized Native American tribe's membership criteria determine whether a child is a "member" of that tribe for purposes of the Indian Child Welfare Act?

History: Petition was filed on 12/2/11. Petition was denied on 5/21/12.

*Holding Below: Nielson v. Ketchum, 640 F.3d 1117. The district court incorrectly held that the Native American birth mother's relinquishment of her parental rights was invalid because the Cherokee Nation's Citizenship Act gave automatic, temporary citizenship to her child as a direct descendant of an original enrollee of the tribe, triggering the procedural safeguards regarding adoption of the Indian Child Welfare Act. The ICWA limits children's membership in federally recognized Indian tribes to those who are eligible for membership because they have a parent who is a member. At the time she relinquished her parental rights, the birth mother was not a member of the Cherokee Nation. The tribe cannot expand the reach of a federal statute by a tribal provision that extends automatic citizenship to the child of a nonmember of the tribe. The district court's grant of partial summary judgment to the birth mother is reversed, and the case is remanded for further proceedings.

Related News Stories: Supreme Court Approached on ICWA Issue (Indian Country Today) 12/10/11.

Comenout v. Washington
Briefs & Pleadings
Docket No. 11-1171

*Issues: (from the petition for a writ of certiorari) Did the court below err by holding that the State of Washington has jurisdiction to charge a state cigarette tax crime against a Quinault Indian and other Indians allegedly selling untaxed cigarettes at the Quinault Indian's trust allotment located outside the Quinault Indian Reservation boundaries? Did the court below err in refusing to apply the federal law definition of Indian country, 18 U.S.C. § 1151(c)? Did the court below err in holding that the State of Washington, an optional Public Law 280 state, had state tax crime criminal jurisdiction of enrolled Indians on trust lands? Did the court below err in holding that Washington law, Wash.Rev.Code 37.12.010 through 060, was exempt from the Quinault Tribe's retrocession of state jurisdiction?

History: Petition was filed on 3/2212. Petition was denied on 5/14/12.

*Holding Below: State v. Comeout, 267 P.3d 355. (From Westlaw) The Supreme Court, Alexander, J., held that:
(1) state had nonconsensual criminal jurisdiction over defendants, and
(2) unlicensed store from which defendants were allegedly selling unstamped cigarettes was not exempt from state cigarette tax.
Affirmed.

McCrary v. Ivanof Bay Village
Docket No. 11-1092

*Issues: (from the petition for a writ of certiorari) In 1993 and 1995, and then in succeeding years, the Secretary of the Interior published in the Federal Register a list of more than 200 "Native Entities Within the State of Alaska Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs." Respondent Ivanof Bay Village, whose members live in Anchorage, Alaska's largest city, and which purports to represent an abandoned Native village site on the Alaska Peninsula, is a listed entity. In 1999 and again in the decision that is the subject of this petition the Alaska Supreme Court held that Congress intended the Federally Recognized Indian Tribe List Act of 1994 to delegate the Secretary authority to - simply by publishing the aforementioned lists - transform the Alaska Native members of the listed entities into "federally recognized tribes," each of which has sovereign immunity. The question presented is: Whether the Alaska Supreme Court correctly held that Congress intended the Federally Recognized Indian Tribe List Act to delegate the Secretary of the Interior authority to create more than 200 "federally recognized tribes" in Alaska by publishing a list of Native Entities in the Federal Register.

History: Petition was filed on 3/5/12. Petition was denied on 4/23/12.

*Holding Below: McCrary v. Ivanof Bay Village, 265 P.3d 337. (From Westlaw) Michael McCrary sued Ivanof Bay Village (Ivanof Bay) and its president, Edgar Shangin, under two contracts, alleging breaches of the implied covenants of good faith and fair dealing. The superior court dismissed the suit based on sovereign immunity. McCrary appeals the sovereign immunity ruling, arguing that even though the United States Department of Interior lists Ivanof Bay as a federally recognized Indian tribe, Ivanof Bay has not been formally designated as a federally recognized tribe. We have previously concluded Alaska Native tribes recognized by Congress or the Executive Branch are sovereign under federal law, and McCrary has not demonstrated this conclusion should be overturned. We therefore affirm the superior court's dismissal of McCrary's suit.

Related News Stories: McCrary v. Ivanof Bay Village: Cert Petition Challening Alaska Native Immunity (Turtle Talk) 3/11/12.

Beaulieu v. Minnesota
Briefs and Pleadings
Docket No. 11-753

*Issues: (1) Does Public Law 280, 18 U.S.C. § 1162, and 28 U.S.C. § 1360, give the state of Wisconsin jurisdiction to involuntarily civilly commit a member of a federally recognized Native American tribe who is a legal resident of his tribal reservation under Minnesota's Commitment and Treatment Act, Minn. Stat. Ch. 253B? (2) Was Minnesota's involuntary civil commitment of the petitioner contrary to, and/or an unreasonable application of clearly established law limiting Public Law 280's grant of civil jurisdiction to private civil matters?

History: Petition was filed on 11/25/11. Petition was denied on 4/16/12.

*Holding Below: In re Civil Commitment of Beaulieu, 2010 WL 3397335.The district court's decision is affirmed. Federal law does not preempt state jurisdiction over the civil commitment of sexually dangerous persons and those with sexually psychotic personalities, and exceptional circumstances exist to permit Minnesota to exercise jurisdiction over such cases, namely the state's heightened or compelling interest in protecting the public from "dangerous and repeat sex offenders" and its interest in "the care and treatment of sex offenders and the mentally disordered."

LaBuff v. United States
Briefs and Pleadings
Docket No. 11-6168

*Issues: (from the petition for a writ of certiorari) This Petition follows a direct appeal from a criminal conviction entered in United States District Court and affirmed by the Ninth Circuit Court of Appeals. Petitioner was convicted of, and was sentenced for, Robbery/Aiding and Abetting Robbery, in violation of Title 18 United States Code § § 1153, 2111, and 2. . . Petitioner presented one argument on appeal: the Government failed to prove beyond a reasonable doubt that Mr. LaBuff, who considers himself white and whose mother is white, to be [sic] and "Indian person."

History: Petition was filed on 8/26/11. Petition was denied on 4/2/12.

*Holding below: United States v. LaBuff, 2011 WL 4840449. (From Westlaw) The Court of Appeals held that there was sufficient evidence that defendant was an Indian to support the conviction under the Major Crimes Act.

Related News Stories: LaBuff v. United States Cert Petition (Turtle Talk Blog) 10/19/11.

Shavanaux v. United States
Briefs and Pleadings
Docket No. 11-7731

*Issues: (from the petition for a writ of certiorari) Section 117 of U.S.C. Title 18 makes it a federal felony to commit simple domestic assault in Indian country after having twice previously been convicted of domestic assault. The statute specifically includes tribal court conviction to establish an element of a subsequent offense. The Tenth Circuit entrenched the circuit split with implications for all Indians who have prior tribal convictions used against them in state or federal court. Does the Constitution prevent the use of a prior, uncounseled tribal court conviction that received a term of imprisonment to establish an element of the offense?

History: Petition was filed on 12/7/11. Petition was denied on 3/19/12.

*Holding Below: United States v. Shavanaux, 647 F.3d 993. (From Westlaw) The Court of Appeals, Lucero, Circuit Judge, held that: (1) use of defendant's uncounselled tribal court convictions did not violate Sixth Amendment right to counsel; (2) defendant's tribal convictions and their subsequent use for indictment did not violate Due Process Clause of the Fifth Amendment; and (3) statute governing domestic assault by a habitual offender did not violate equal protection.

Related News Stories: Supreme Court Denies Cert in Shavanaux (Turtle Talk) 3/19/12.

Cavanaugh v. United States
Briefs and Pleadings
Docket No. 11-7379

*Issues: (from the petition for a writ of certiorari) Section 117 of U.S.C. Title 18 requires mandatory sentences for "any person who commits a domestic assault within the special maritime and territorial jurisdiction of the United States or Indian country and who has a final conviction or at least two seperate prior occaisions in Federal, State, or Indian tribal court proceedings for offenses that would be, if subject to Federal juriscidion, any assault, sexual abuse, or serious violent felony against a spouse or intimate partner." The question presented is: 1. Whether the United States Constitution precludes the use of prior, uncounseled, tribal court midemeanor convictions as predicate convictions to establish the habitual offender element of Section 117?

History: Petition was filed on 11/10/11. Petition was denied on 2/21/12.

*Holding Below: United States v. Cavanaugh, 643 F.3d 592. (From Westlaw) The Court of Appeals, Melloy, Circuit Judge, held that, as matter of first impression, defendant's uncounseled prior convictions in tribal court could be used to enhance federal charge. Reversed and remanded. Bye, Circuit Judge, dissented and filed opinion.

Bryant v. United States
Docket No. 11-8344

*Issues: Not yet available.

History: Petition was filed on 1/12/12. Petition was denied on 2/21/12.

*Holding Below: United States v. Bryant, 664 F.3d 831. (From Westlaw) Defendant conditionally plead guilty in the United States District Court for the Eastern District of Oklahoma to theft by an officer or employee of a gaming establishment on Indian lands, reserving the right to appeal the denial of her motion to dismiss for lack of jurisdiction. Defendant appealed. Holding: The Court of Appeals, Paul J. Kelly, Jr., Circuit Judge, held that district court had subject matter jurisdiction over action.

Gustafson v. Estate of Poitra
Briefs and Pleadings
Docket No. 11-701

*Issues: (1) May North Dakota supplant federal law on jurisdictional disputes between state courts and tribal courts with its own state case law? (2) Does North Dakota have subject matter jurisdiction over a contract dispute between an individual non-member and a member of a Native American tribe arising from the ownership and use of a building located on non-Native-American-owned fee land on a reservation?

History: Petition was filed on 12/2/11. Petition was denied on 2/21/12.

*Holding Below: Gustafson v. Estate of Poitra, 2011 WL 3484437. In a case in which the plaintiff operated a leasehold business in a building straddling the boundary line of his land and land within a Native American reservation owned by the estate of a tribal member, the state district court did not have subject matter jurisdiction over plaintiff's action seeking money allegedly owed him for maintenance and repair of the building, a declaration of the proportions of ownership between the parties, and cancellation of the lease. Under the infringement test set forth by the U.S. Supreme Court in Williams v. Lee, 358 U.S. 217 (1959), state court jurisdiction over certain claims is prohibited if it would "undermine the authority of the tribal courts over Reservation affairs and hence infringe the right of the Indians to govern themselves." Plaintiff's reliance on Plains Commerce Bank v. Long Family Land & Cattle Company Inc., 554 U.S. 316, 76 U.S.L.W. 4558 (2008), is unavailing because the jurisdictional facts of that case are distinguishable. In Plains Commerce Bank, the Supreme Court held that a tribal court did not have jurisdiction to adjudicate a discrimination claim based on the sale of fee land to nonmembers of the tribe on more favorable terms than those offered to members, because neither the seller nor the buyers of the land were tribal members. The default judgment is vacated.

Ute Mountain Ute Tribe v. Padilla
Briefs and Pleadings
Docket No. 11-729

*Issues: Federal law does not preempt the collection of taxes by New Mexico from oil and gas companies extracting minerals within a Native American tribe's reservation. Applying a flexible preemption analysis, the U.S. Supreme Court made clear in Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989), that courts should conduct a particularized examination of state, federal, and tribal interests that is "sensitive to the particular facts and legislation involved." In this situation, it is appropriate to consider the off-reservation infrastructure by which the extracted minerals are transported. The evidence presented here demonstrates that the federal regulatory scheme over oil and gas production is not exclusive; the economic burden of the taxes falls on the oil and gas companies, not the tribe; and the taxes are justified by New Mexico's regulation of the off-reservation infrastructure. The district court's injunction is vacated, and the case is remanded for further proceedings.

History: Petition was filed on 12/12/11. Petition was denied on 2/21/12.

*Holding Below: Ute Moutain Ute Tribe v. Rodriguez, 660 F.3d 1177. (1) Does a state have the power to tax minerals production within the territorial boundaries of a Native American tribe when the state provides no services in that location whatsoever, and when the tribe's members cannot vote in that state's elections, amounting to taxation without representation? (2) Does Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989), permit New Mexico to tax oil and gas operators' activities on Native American trust land even where, as here, "the State has nothing to do with the on-reservation activity, save tax it"?

Related News Stories: High court denies Ute hearing on levied taxes. (Indian Country Today) 2/23/12.

K2 America Corporation v. Roland Oil & Gas
Briefs and Pleadings
Docket No. 11-573

*Issues: Do federal courts have jurisdiction over civil actions that seek to adjudicate ownership of, or possession of any interest in, real property to which the United States holds title in trust on behalf of Native Americans, as stated in Boisclair v. Superior Court, 801 P.2d 305 (Cal. 1990) (en banc)?

History: Petition was filed on 11/3/11. Petition was denied on 1/17/12.

*Holding Below: K2 America Corporation v. Roland Oil & Gas , 653 F.3d 1024. Federal jurisdiction does not extend to state law claims in a lawsuit between two Montana corporations arising from a dispute over lands held by the United States in trust for various Native American allottees. The judgment of the district court is affirmed.

Owen v. Weber
Docket No. 11-7199

*Issues: not yet available

History: Petition was filed on 10/31/11. Petition was denied on 01/09/12.

*Holding Below: Owen v. Weber, 646 F.3d 1105. (From Westlaw) The Court of Appeals held that tribal housing complex at which petitioner stabbed two victims was not a "dependent Indian community," in determining whether resulting murder and assault charges were within federal courts' exclusive jurisdiction.

Ysleta del Sur Pueblo v. Texas
Briefs and Pleadings
Docket No. 11-553

*Issues: (from the petition for a writ of certiorari) 1. Whether a non-purgable contempt sanction that requires an Indian Tribe indefinitely to allow state agents onto its reservation is a criminal sanction requiring criminal due process protections for the Tribe. 2. Whether it was a proper exercise of judicial civil contempt powers for the district court to grant unsupervised state regulatory oversight on an Indian reservation where Congress specifically denied the state that authority.

History: Petition was filed on 10/28/11. Petition was denied on 1/09/12.

*Holding Below: Texas v. Ysleta del Sur Pueblo, 2011 WL 2583615. (From Westlaw) The Court of Appeals held that: (1) contempt order was civil in nature; (2) District Court did not give State regulatory authority and power to enforce federal law over Indian tribe in entering order granting state agents monthly access to tribe's gaming records; and (3) District Court did not improperly delegate adjudicatory role to State in entering such order. Affirmed.

Omaha Tribe of Nebraska v. StoreVisions, Inc.
Briefs and Pleadings
Docket No. 11-508

*Issues: Is apparent authority sufficient to bind a Native American tribe to a waiver of the tribe's federally protected sovereign immunity, when the purported waiver is executed by a tribal official acting outside the scope of his actual authority?

History: Petition was filed on 10/20/11. Petition was denied on 1/17/12.

*Holding Below: StoreVisions, Inc. v. Omaha Tribe of Nebraska, 802 N.W.2d 420. The chairman and vice chairman of the Omaha Tribe of Nebraska had the requisite authority to waive the tribe's sovereign immunity as part of contractual agreements with a general contractor concerning the tribe's plans to expand its casino operations.

Related News Stories: Omaha Tribe v. StoreVisions Cert Petition (Turtle Talk Blog) 10/21/11.

Malaterre v. Amerind Risk Management Corp.
Briefs and Pleadings
Docket No. 11-441

*Issues: Can a tribal business corporation formed under 25 U.S.C. § 477 with the aim of insuring Indian Housing Authorities properly invoke tribal sovereign immunity as a ground for avoiding its contractual obligation to provide insurance coverage for liability claims arising from injuries sustained by tribal-member tenants in Indian housing units?

History: Petition was filed on 10/6/11. Petition was denied on 1/17/12.

*Holding Below: Amerind Risk Management Corp. v. Myrna Malaterre, 2011 WL 500216. The Turtle Mountain Tribal Court does not have jurisdiction over a wrongful death and personal injury action brought by enrolled members of the Turtle Mountain Band of Chippewa Indians against Amerind Risk Management Corporation, a federally chartered corporation that assumed the rights and obligations of its tribally chartered predecessor. Amerind is entitled to tribal immunity, and the plaintiffs have failed to meet their burden of showing that the corporation waived such immunity. The decision of the district court is reversed and the case remanded with instructions to enjoin the plaintiffs from proceeding against Amerind in tribal court.

San Carlos Apache Tribe v. United States
Docket No. 11M51

History: Petition to file a writ of cert. out of time was filed on 11/18/11. Petition was denied on 12/12/11.

*Holding Below: San Carlos Apache Tribe v. United States , 639 F.3d 1346. (From Westlaw) The Court of Appeals, Lourie, Circuit Judge, held that Tribe should have known that terms of consent decree precluded it from seeking additional Gila River water rights upon entry of decree.

Related News Stories: Supreme Court blocks San Carlos Apache Tribe from appeal (Indianz.com) 12/12/11.

Lomas v. Hedgpeth
Briefs and Pleadings
Docket No. 11-424

*Issues: (from the petition for a writ of certiorari) Whether the Ninth Circuit incorrectly denied Petitioner a Certificate of Appealability, pursuant to 28 U.S.C. § 2253(c), on his Sixth Amendment claim that his trial counsel rendered ineffective assistance of counsel by failing to file a Motion to Dismiss and/or Suppress pursuant to his Fourth Amendment right to be free from an unreasonable search and seizure on the Morongo Band of Mission Indians' Reservation's protected land?

History: Petition was filed on 10/4/11. Petition was denied on 11/28/11.

*Holding Below: Lomas v. Hedgpeth (Ninth Circuit Order), 2009 WL 3395300 (District Court Opinion). Request for a Certificate of Appealability denied by Ninth Circuit pursuant to 28 U.S.C. § 2253(c).

Related News Stories: Lomas v. Hedgpeth Cert Petition: Challenge to Conviction Based on Search at Morongo Gaming Operation (Turtle Talk Blog) 10/10/11.

Evans v. Wapato Heritage
Briefs and Pleadings
Docket No. 11-215

*Issues: (1) Should this Court grant this petition to address the court of appeals' and district court's lack of subject matter jurisdiction over this matter? (2) Should this Court grant this petition to address the court of appeals' and district court's erroneous interpretation of 25 U.S.C. § 410 as not applying to the assignment and attachment of the petitioner's Individual Indian Money Account? (3) Should this Court grant this petition to address the court of appeals' and district court's erroneous grant of summary judgment when there are genuine issues of material fact? (4) Should this Court grant this petition to address the court of appeals' and district court's erroneous exclusion of the petitioner's expert evidence on damages?

History: Petition was filed on 8/15/11. Petition was denied on 11/28/11.

*Holding below: Wapato Heritage, L.L.C. v. United States, 629 F.3d 1296. The court had subject matter jurisdiction because federal law applied given the matter dealt with an Indian probate matter. The grant of summary judgment was correct because there was no dispute that a loan had not been made as required by the settlement agreement.

Gila River Indian Community v. Lyon
Briefs and Pleadings
Docket No. 11-80

*Issues: (1) Under Fed. R. Civ. P. 19(b), may courts adjudicate and compromise legal rights in land to which the United States holds title without the United States' participation in the litigation? (2) In light of this court's recent decision in United States v. Jicarilla Apache Nation, 79 U.S.L.W. 4474 (June 13, 2011), did the Ninth Circuit properly hold, as a matter of law, that litigation compromising the United States' title in land can proceed in the United States' absence as long as an Indian tribe is a party to the litigation?

History: Petition was filed on 7/15/11. Petition was denied on 10/31/11.

*Holding below: Lyon v. Gila River Indian Community, 626 F.3d 1059. In a dispute between a federally recognized Indian tribe and a bankruptcy trustee over title to a 657-acre parcel of land--"Section 16"--completely surrounded by the tribe's reservation, the United States is not a necessary and indispensable party under Fed. R. Civ. P. 19 for purposes of resolving the tribe's aboriginal title claim, and is not an indispensable party for purposes of determining the trustee's right to access Section 16 through reservation land. The United States, having granted Section 16 to Arizona in 1877 for the "support of common schools," has not held Section 16 since either in fee or as a trustee, and does not now claim any interest in it. Nor was the transfer to Arizona subject to the tribe's aboriginal title, which Congress had previously extinguished. Although the United States should be joined as a necessary party to determine the trustee's right of access to Section 16 (because any access to Section 16 must be through reservation lands to which the United States holds legal title as trustee for the tribe), joinder is impossible because the United States has not waived sovereign immunity. In any event, under Puyallup Indian Tribe v. Port of Tacoma, 717 F.2d 1251 (1983), when a tribe has filed a claim to protect its own interest in tribal lands, the United States is not an indispensable party in whose absence the litigation cannot proceed under Rule 19(b), irrespective of whether the United States is a necessary party under Rule 19(a). Although the tribe argues that the trustee was the aggressor in this litigation (because he asserted title to Section 16 by listing it as a bankruptcy asset and initiated the adversarial proceeding in the bankruptcy court), for purposes of the Puyallup exception, the tribe effectively initiated this litigation by filing a proof of claim in the bankruptcy court contesting the trustee's title and access rights to Section 16.

Related News Stories: SCOTUSblog Lists Gila River Indian Community v. Lyon as Petition to Watch (Turtle Talk Blog) 10/26/11. Supreme Court Denies Gila River Indian Community v. Lyon (Turtle Talk Blog) 10/31/11. Tribe says Supreme Court denial in Arizona case sets dangerous precedent (Cronkite News) 11/1/11.

Oneida Indian Nation v. County of Oneida
Briefs and Pleadings
Docket No. 10-1420

*Issues: Did the court of appeals contravene this court's decision in Oneida Indian Nation of New York v. County of Oneida, 470 U.S. 226 (1985), and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), by ruling that "equitable considerations" rendered petitioners' claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio? Did the court of appeals impermissibly encroach on the legislative power of Congress by relying on "equitable considerations" to bar petitioners' claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue?

History: Petition was filed on 5/16/11. Petition was denied on 10/17/11.

*Holding below: Oneida Indian Nation of New York v. County of Oneida, 617 F.3d 114. Equitable considerations bar Native American tribal claims, premised on the assertion of a continuing right to possession, to approximately 250,000 acres of ancestral tribal lands that were conveyed to the State of New York between 1795 and 1846 in violation of federal law, including the 1793 Trade and Intercourse Act (also known as the Nonintercourse Act), which prohibits the sale of tribal land without the consent of the United States. Although some of the requisite elements of a traditional laches defense have not been established in this case, this omission is ultimately unimportant, because the laches-like equitable defense recognized by controlling precedent does not focus on the elements of traditional laches but rather more generally on the length of time at issue between an historical injustice and the present day, on the disruptive nature of claims long delayed, and on the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to a plaintiff's injury. In City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), the Supreme Court discussed laches not in its traditional application but as one of several pre-existing equitable defenses, along with acquiescence and impossibility, illustrating fundamental principles of equity that precluded the Native American plaintiffs "from rekindling embers of sovereignty that long ago grew cold." The United States' intervention on behalf of the tribes does not change this outcome. Although the United States is traditionally not subject to delay-based equitable defenses under most circumstances, controlling circuit precedent has held, on facts virtually indistinguishable from those here, that "whatever the precise contours of the exception to the rule against subjecting the United States to a laches defense, this case falls within the heartland of the exception." In addition, state sovereign immunity bars the tribes' "nonpossessory" claim, which is a contract-based claim, based on the allegation that New York paid unconscionably inadequate consideration for the original land transfers, that seeks reformation of the original agreements to provide for appropriate compensation. Finally, the alternative nonpossessory claim articulated on appeal, premised on a claim that the initial transfer of the subject land violated the Nonintercourse Act, is also barred by equitable considerations described in Sherrill and circuit precedent, because it would disrupt justified societal interests that have developed over a long period of time.

Related News Stories: Oneida Indian Nation v. County of Oneida named SCOTUSBlog Petition of the Day (SCOTUSBlog) 7/7/11. Navajo Nation v. EEOC Denied; Oneida Land Claim Uncertain — UPDATED (Turtle Talk Blog) 10/3/11. Oneida Land Claims Petitions Listed on SCOTUSBlog's Relist List (Turtle Talk Blog) 10/6/11. Supreme Court Fails to Act on Oneida Land Claims Petitions (Turtle Talk Blog) 10/11/11. Supreme Court declines to hear tribal land claim case (Thomson Reuters) 10/18/11. Commentary on Supreme Court's Denial of Oneida Land Claims Petitions (Turtle Talk Blog) 10/17/11.

United States v. New York
Briefs and Pleadings
Docket No. 10-1404

*Issues: May the United States be barred from enforcing the Nonintercourse Act against a state that repeatedly purchased and resold (at a substantial profit) Indian lands in violation of the act between 1795 and 1846, based on the passage of time and the transfer of the unlawfully obtained Indian lands into hands of third parties, when the United States seeks monetary relief only against the state?

History: Petition was filed on 5/16/11. Petition was denied on 10/17/11.

*Holding below: Oneida Indian Nation of New York v. County of Oneida, 617 F.3d 114. Equitable considerations bar Native American tribal claims, premised on the assertion of a continuing right to possession, to approximately 250,000 acres of ancestral tribal lands that were conveyed to the State of New York between 1795 and 1846 in violation of federal law, including the 1793 Trade and Intercourse Act (also known as the Nonintercourse Act), which prohibits the sale of tribal land without the consent of the United States. Although some of the requisite elements of a traditional laches defense have not been established in this case, this omission is ultimately unimportant, because the laches-like equitable defense recognized by controlling precedent does not focus on the elements of traditional laches but rather more generally on the length of time at issue between an historical injustice and the present day, on the disruptive nature of claims long delayed, and on the degree to which these claims upset the justifiable expectations of individuals and entities far removed from the events giving rise to a plaintiff's injury. In City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197 (2005), the Supreme Court discussed laches not in its traditional application but as one of several pre-existing equitable defenses, along with acquiescence and impossibility, illustrating fundamental principles of equity that precluded the Native American plaintiffs "from rekindling embers of sovereignty that long ago grew cold." The United States' intervention on behalf of the tribes does not change this outcome. Although the United States is traditionally not subject to delay-based equitable defenses under most circumstances, controlling circuit precedent has held, on facts virtually indistinguishable from those here, that "whatever the precise contours of the exception to the rule against subjecting the United States to a laches defense, this case falls within the heartland of the exception." In addition, state sovereign immunity bars the tribes' "nonpossessory" claim, which is a contract-based claim, based on the allegation that New York paid unconscionably inadequate consideration for the original land transfers, that seeks reformation of the original agreements to provide for appropriate compensation. Finally, the alternative nonpossessory claim articulated on appeal, premised on a claim that the initial transfer of the subject land violated the Nonintercourse Act, is also barred by equitable considerations described in Sherrill and circuit precedent, because it would disrupt justified societal interests that have developed over a long period of time.

Related News Stories: Navajo Nation v. EEOC Denied; Oneida Land Claim Uncertain — UPDATED (Turtle Talk Blog) 10/3/11.Oneida Land Claims Petitions Listed on SCOTUSBlog's Relist List (Turtle Talk Blog) 10/6/11. Supreme Court declines to hear tribal land claim case (Thomson Reuters) 10/18/11. Commentary on Supreme Court's Denial of Oneida Land Claims Petitions (Turtle Talk Blog) 10/17/11.

Seneca Telephone Company v. Miami Tribe of Oklahoma
Briefs and Pleadings
Docket No. 11-183

*Issues: (1) Under federal preemption principles invoked in Rice v. Rehner, 463 U.S. 713 (1983), and specifically, the principles determinative on the applicability of the doctrine of tribal immunity in a regulatory context, did the Oklahoma Supreme Court err and issue a conflicting ruling with Rice when it failed to apply the preemption principles to the present cases? (2) Under the preemption principles invoked in Rice, as applied to the present cases, does the 1934 Communications Act delegate to the states the authority to exercise jurisdiction over tribal entities when Congress confers to the states the power to exercise jurisdiction over all intrastate communications?

History: Petition was filed on 8/10/11. Petition was denied on 10/17/11.

*Holding below: Seneca Telephone Company v. Miami Tribe of Oklahoma, 253 P.3d. 53. A negligence suit by a phone company against the Miami Indian tribe, which damaged the phone company's underground telephone lines during excavation on property owned by another tribe, was preempted under federal law and the phone company has no remedy for its damages. Congress did not specifically waive tribal immunity in 47 U.S.C. § 152, which deals with telecommunications activities, and, in any event, the Miami tribe was doing excavation and was not involved in telecommunication activities.

Newell v. United States
Docket No. 11-6152

History: Petition was filed on 8/29/11. Petition was denied on 10/11/11.

*Holding below: United States v. Newell , 2011 WL 2675362. (From Westlaw) Native American defendants were convicted in the United States District Court for the District of Maine, 578 F.Supp.2d 207, George Z. Singal, J., of conspiracy to defraud United States, among other offenses, and they appealed. The Court of Appeals, Torruella, Circuit Judge, held that:
(1) district court had jurisdiction over conspiracy charges;
(2) evidence was sufficient to sustain convictions for conspiracy to defraud; and
(3) evidence was insufficient to sustain conviction for making materially false statements.
Affirmed in part, vacated in part, and remanded.

Reed v. Gutierrez
Briefs & Pleadings
Docket No. 10-1390

*Issues: Should the doctrine of tribal sovereign immunity be abrogated? Even if the doctrine of tribal sovereign immunity should not be abrogated, should it bar claims against Indian tribes or their employees for their off-reservation torts?

History: Petition was filed on 5/10/11. Petition was denied on 10/3/11.

*Holding below: Reed v. Gutierrez , 2011 WL 1821576. Under Kiowa Tribe of Oklahoma v. Manufacturing Technologies Inc., 523 U.S. 751 (1998), tribal sovereign immunity shields a Native American pueblo from liability for an off-reservation tort--specifically, a tribal employee improperly turned a vehicle owned by the pueblo into oncoming traffic while conducting tribal business within the scope of his employment and thereby injured the plaintiffs. Without an unequivocal and express waiver of sovereign immunity or congressional authorization of suits against tribes, tribal entities are immune from suit both on and off tribal reservations. States may not abrogate tribal immunity in any way. The contention that tribal immunity should not extend to the employee will not be addressed because the plaintiffs do not support their argument with citation to authority, and because it was raised for the first time in a reply brief.

Navajo Nation v. Equal Employment Opportunity Commission
Briefs & Pleadings
Docket No. 10-981

*Issues: (1) May the sovereign immunity of the United States and of a federally recognized Indian tribe, preserved in Title VII of the 1964 Civil Rights Act, be abrogated by application of Fed. R. Civ. P. 14 and 19? (2) May a court use Rule 14 to permit or require a party to implead the secretary of the interior in a case in which the applicable statute does not confer a right of contribution?

History: Petition was filed on 1/28/11. Petition was denied on 10/3/11.

*Holding below: Equal Employment Opportunity Commission v. Peabody Western Coal Company, 610 F.3d 1070. First ruling below (EEOC v. Peabody Western Coal Co., 9th Cir., 400 F.3d 774): Under Fed. R. Civ. P. 19, which governs compulsory party joinder in federal district courts, the Navajo Nation is a necessary party to a lawsuit filed by the Equal Employment Opportunity Commission against a coal company that, in accordance with the terms of its leases of the Navajo Nation's mines, maintains a Navajo hiring preference that allegedly violates Title VII of the 1964 Civil Rights Act. Because the EEOC seeks declaratory and injunctive relief, relief would be incomplete unless the Navajo Nation is bound by the res judicata effect of any judgment. In addition, the feasibility of joinder is not defeated by either the Navajo Nation's sovereign immunity or its exemption from Title VII. A tribe's sovereign immunity does not shield it from a suit by the United States or one of its agencies (such as the EEOC), even when Congress has not specifically abrogated tribal immunity, and thus the Navajo Nation cannot assert its sovereign immunity as a defense to joinder. Finally, although Indian tribes are exempt from Title VII, the EEOC is not seeking any affirmative relief directly against the tribe, and Rule 19 does not require a cause of action between a plaintiff and a party whose joinder is sought.
Second ruling below (EEOC v. Peabody Western Coal Co. 9th Cir., 610 F.3d 1070, 109 Fair Empl. Prac. Cas. 993):
The court reaffirms its prior holding, 400 F.3d 774 (9th Cir. 2005), that the Navajo Nation is a necessary party under Rule 19. In addition, the secretary of interior, who insisted that the Navajo hiring preference be included in the mine leases and continues to exercise oversight over the leases, is also a necessary party under Rule 19. The secretary's joinder, however, is not feasible because the EEOC is barred by 42 U.S.C. § 2000e-5(f)(1) from filing suit against a government agency. Moreover, the EEOC's damages claim against the coal company should be dismissed under Rule 19(b), because any third-party complaint under Rule 14(a) by the coal company for indemnification against the secretary would be barred by sovereign immunity, and it would be profoundly unfair to award damages against the coal company while allowing it no redress against the government for complying with a hiring preference inserted in the leases at the government's insistence. The EEOC's claim for injunctive relief against the hiring preference, however, should be permitted to proceed. Under Section 702 of the Administrative Procedure Act, sovereign immunity does not bar prospective injunctive relief against the secretary of interior, and thus, if an injunction were issued against the coal company and the Navajo Nation, they would be permitted to file a third-party complaint under Rule 14(a) against the secretary to enjoin its enforcement of the hiring preference.

Related News Stories: Equal Employment Opportunity Commission v. Peabody Western Coal Company named SCOTUSBlog Petition of the Day (SCOTUSBlog) 5/25/11. Navajo Nation v. EEOC Denied; Oneida Land Claim Uncertain — UPDATED (Turtle Talk Blog) 10/3/11.

Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort
Briefs & Pleadings
Docket No. 10-1389

*Issues: (1) In the absence of any congressional legislation, is a business enterprise that performs a nongovernment function entitled to tribal immunity for actions that occur outside of a reservation when a corporation charter provides that the business is a "separate entity" from the tribe and that the tribe shall not be liable for any judgment entered against the business? (2) In determining whether a business enterprise is subject to tribal immunity, should a dispositive factor be if the tribe will be liable for a judgment entered against the enterprise when the justification for the creation of the immunity doctrine was to protect the governmental person that is a sovereign from the inconvenience of a suit?

History: Petition was filed on 5/9/11. Petition was dismissed on 8/23/11 - Rule 46.

*Holding below: Breakthrough Management Group, Inc. v. Chukchansi Gold Casino and Resort , 629 F.3d 1173. A six-part test applies to determine whether economic entities created by a Native American tribe qualify as subordinate economic entities entitled to share in the tribe's sovereign immunity. Specifically, a court must look at (i) the entities' method of creation, (ii) their purpose, (iii) their structure, ownership, and management, including the amount of control the tribe has over the entities, (iv) whether the tribe intended for the entities to have tribal sovereign immunity, (v) the financial relationship between the tribe and the entities, and (vi) whether the policies underlying tribal sovereign immunity and its connection to tribal economic development, including protection of the tribe's money and preservation of tribal cultural autonomy, preservation of tribal self-determination, and promotion of commercial dealings between Indians and non-Indians, are served by granting immunity to the entities. Under these factors, a casino operated for the benefit of a federally recognized Native American tribe, and the tribal authority that owns and operates it, are so closely related to the tribe that they should share in its sovereign immunity. Accordingly, unless they waived their immunity--an issue to be considered on remand--the casino and authority are immune from a lawsuit filed by a provider of business management training and consulting services that alleges that the casino paid for a single-person license for one of the provider's online training programs, but then, without the provider's permission, recorded and used portions of that program to train more than one employee. Whether a judgment against an economic entity would impact the tribe's financial assets is not a dispositive inquiry into how close the tribe and the entity are related, and the district court's decision to treat it as such was error.

 

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