2005-06 Term
Supreme Court Cases Related to Indian Law
Two Indian law-related cases were granted.
Petition for certiorari was denied in 26 Indian law-related cases.
Two cases were vacated and remanded.
Cert Granted
Subjects: União do Vegetal --
Rituals; United States; United States. Controlled Substances Act;
Hoasca; Hallucinogenic plants.
*Issues: Does 1993 Religious Freedom Restoration
Act require government to permit importation, distribution, possession,
and use of Schedule I hallucinogenic controlled substance, when
Congress has found that substance has high potential for abuse,
it is unsafe for use even under medical supervision, and its importation
and distribution would violate international treaty?
Holding: (from Westlaw) The Supreme
Court, Chief Justice Roberts, held that: (1) Government had burden
to demonstrate compelling interest, and (2) Government failed to
demonstrate compelling interest in barring sect's sacramental use
of hoasca.
Affirmed and remanded.
History: Petition for certiorari was filed
on 2/10/2005. Petition was granted on 4/18/05. Argued on 11/1/05.
Decided 2/21/06.
*Holding below: Centro
Espirita Beneficiente Uniao do Vegetal v. Ashcroft, 389
F.3d 973, 10th Cir. (en banc). In light of Congress's implicit
determination in Religious Freedom Restoration Act that harm prevented
and public interest served by protecting citizen's free exercise
of religion must be given controlling weight, barring government's
proof, by specific evidence, that its interests are more compelling,
district court did not abuse its discretion in preliminarily enjoining
enforcement of Controlled Substances Act against church's use of
hoasca (hallucinogenic tea) in religious ceremonies, based on its
finding that scale tipped in church's favor given closeness of parties'
evidence regarding safety of hoasca use and its potential for diversion.
Related News Stories: Trust relationship
not convincing to Supreme Court (Indianz.com)
2/22/06. Supreme Court weighs use of hallucinogen in worship (AP)
11/2/05. Use of Hallucinogen to Get U.S. Supreme Court Scrutiny
(Bloomberg.com) 4/18/05. Supreme Court to Hear Tea
Case (AP)
4/18/05.
Subjects: Motor fuels -- Taxation --
Kansas; Prairie Band of Potawatomi Indians, Kansas -- Taxation;
Kansas; Distributors (Commerce) -- Kansas; Exclusive and concurrent
legislative powers -- United States; Sovereignty -- Prairie Band
of Potawatomi Indians, Kansas; Kansas. Dept. of Revenue; Preemption
of state law -- Kansas.
*Issues: (1) When state taxes receipt
of fuel by nontribal distributors, manufacturers, and importers,
and such receipt occurs off-reservation, does interest balancing
test in White
Mountain Apache Tribe v. Bracker, 448
U.S. 136 (1980), apply because fuel is later sold by tribe to
final consumers? (2) Should court abandon White Mountain Apache
interest balancing test in favor of preemption analysis based on
principle that Indian immunities are dependent upon congressional
intent? (3) Did court of appeals err in applying White Mountain
Apache interest balancing test by, inter alia, placing dispositive
weight on fact that tribally owned gas station derives income from
largely nontribal patrons of tribe's nearby casino?
Holding: (from Westlaw) The Supreme
Court, Justice Thomas, held that:
(1) Chickasaw categorical bar on imposition of legal incidence of
state excise tax on a tribe or on tribal members for sales made
inside Indian country without congressional authorization was not
applicable;
(2) Bracker interest-balancing test for preemption of state taxation
of activity on an Indian reservation, which applies when a state
asserts taxing authority over the conduct of non-Indians engaging
in activity on a reservation, was not applicable;
(3) tax was not invalid on theory that it was impermissibly discriminatory
because the state exempted from taxation fuel sold or delivered
to all other sovereigns; and
(4) tax was valid and posed no affront to tribe's sovereignty.
History: Petition for certiorari was filed
on 11/05/2004. Petition was granted on 2/28/05. Argument on 10/3/05.
Decided 12/6/05.
*Holding below: Prairie
Band of Potawatomi Nation v. Richards, 379
F.3d 979, 10th Cir. Kansas tax on fuel supplied to Indian tribe
for its sole, on-reservation gas station by non-Indian distributors
is preempted by federal law because, although state has interest
in raising revenue, tax is incompatible with and outweighed by strong
tribal and federal interests, including (i) tribal and federal interests
in tribal self-sufficiency and economic development, including efforts
to attract non-Indians to tribe's on-reservation casino, of which
fuel sales, 73 percent of which are to casino patrons and employees,
are integral and essential part, and (ii) tribe's need to raise
fuel revenues to construct and maintain, without state assistance,
reservation roads, bridges, and related infrastructure, including
access road to casino from interstate highway, to which tribe's
fuel revenue is dedicated by tribal law.
Related News Stories: Supreme Court ruling
favors taxing gas on Indian reservations (Farmington
Daily Times) 12/09/05. Court backs Kansas in gasoline tax case
involving tribe. (Kansas
City Star) 12/7/05. Supreme Court rules states can tax fuel
sold on Indian reservations. (NativeTimes.com)
12/6/05. Court backs fuel tax on Indian lands (Mercury
News) 12/6/05. Lawyers fear Kansas may win tax case. (Indian
Country Today) 10/14/05. Supreme Court will hear Potawatomi
fuel tax case. (Native
American Times) 2/28/05.
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Cert Denied
Arrietta v. United States
Docket
No. 05-10770
Briefs
& Pleadings
Subjects: Indian Country (U.S.) -- Defined;
Criminal actions arising in Indian Country (U.S.) -- Pueblo of Pojoaque,
New Mexico; Assault and battery -- Pueblo of Pojoaque, New Mexico;
Indians of North America -- Violence against.
*Issues: not available from USLW
History: Petition for certiorari was filed
on 5/01/2006. Petition was denied on 6/5/06.
*Holding below: United
States v. Arrieta, 436
F.3d 1246, 10th. Cir. (from Westlaw) The Court of Appeals,
McConnell, Circuit Judge, held that:
(1) road maintained by county, lying between two parcels of land
owned by non-Indians, but within exterior boundaries of Pojoaque
Pueblo, was Indian country, and
(2) district court did not have authority to depart downward from
agreed upon specific sentence.
Affirmed in part, reversed in part, and remanded.
Smith v. Salish Kootenai College
Docket
No. 05-10357
Briefs
& Pleadings
Subjects: Traffic fatalities -- On Indian
reservations -- Umatilla Reservation, Confederated Tribes of the,
Oregon; Umatilla Reservation, Confederated Tribes of the, Oregon
-- Members; Jurisdiction -- Umatilla Reservation, Confederated Tribes
of the, Oregon -- Application -- Non-Indians; Salish Kootenai College;
Evidence (Law).
*Issues: not available from USLW
History: Petition for certiorari was filed
on 4/10/2006. Petition was denied on 6/19/06.
*Holding below: Smith
v. Salish Kootenai College, 434
F.3d 1127, 9th. Cir. (from Westlaw) On rehearing en
banc, the Court of Appeals, Bybee, Circuit Judge, held that tribal
courts had subject matter jurisdiction.
Arakaki v. Lingle
Docket
No. 05-1128
Subjects: Government -- Programs -- Hawaii;
Native Hawaiians; Hawaii. Office of Hawaiian Affairs; Taxation --
Hawaii; Equality before the law -- Hawaii; Finance -- United States;
Standing to sue -- United States.
*Issues: (1) Do cross-petitioners have
standing as beneficiaries of Hawaii's ceded lands trust to challenge
federal laws that require present trustee (state of Hawaii) to breach
its fiduciary duties (i.e., duty of impartiality and duty not to
comply with illegal trust terms) and to sue Hawaii state officials
to enjoin them from breaching same fiduciary duties? (2) Do cross-petitioners
have standing as state taxpayers to challenge federal laws that
require state of Hawaii to engage in racial discrimination and to
sue to enjoin state officials from implementing federally mandated
racial discrimination? (3) Do cross-petitioners have standing as
state taxpayers (in addition to right to challenge direct appropriations
of tax revenues to Office of Hawaiian Affairs, properly upheld by
court of appeals) to sue to enjoin state officials from racial discrimination
in other ways that increase their state tax burden such as: by issuing
general obligation bonds or by transfers characterized as "settlement"
or "trust revenues" or by lease of public lands for nominal
consideration?
History: Petition was filed on 3/03/06.
Petition was denied on 6/12/06.
*Holding below: Arakaki
v. Lingle 423
F.3d. 954, 9th Cir. State taxpayers have standing to bring lawsuit
claiming that appropriation of state tax revenue to support state
Office of Hawaiian Affairs programs that limit benefits to "native
Hawaiians" or "Hawaiians" violates 14th Amendment's
equal protection clause, but they lack standing to sue federal government,
and thus district court properly dismissed all claims to which United
States is either named or indispensable party, including claims
challenging appropriation of tax revenue to Department of Hawaiian
Home Land/Hawaiian Homes Commission, claims challenging settlement
of past claims against OHA, claims challenging issuance of bonds
and all other spending that does not originate in tax revenue, and
claims challenging eligibility requirements with respect to DHHL/HHC
leases.
Related News Stories: U.S. Supreme
Court intervenes in Native Hawaiian case. (Indianz.com)
6/13/06.
Mattaponi Indian Tribe, et al. v. Virginia
Docket
No. 05-1141
Briefs & Pleadings
Subjects: Virginia. State Water Control
Board; Permits -- Virginia -- Newport News; Treaty at Middle Plantation(1677);
King William Reservoir project (Va.); Reservoirs -- Virginia; Dams
-- Virginia; State recognized Indian tribes -- Mattaponi Indian
Reservation (Virginia); Treaty rights -- Mattaponi Indian Reservation
(Virginia); Mattaponi Indian Reservation (Virginia) -- Exclusion,
Right of; Trials (Trespass); Evidence; Sovereign immunity -- Virginia.
*Issues: Should obligations imposed by
Indian treaty with prior sovereign be enforceable as matter of federal
law under supremacy clause?
History: Petition for certiorari was filed
on 3/06/2006. Petition was denied on 6/12/06.
*Holding below:
Alliance
to save the Mattaponi Indian v. Commonwealth of Virginia, Department
of Environmental Quality,
270 Va. 423, Supreme Court of VA. Provision of U.S. Constitution's
supremacy clause that "all treaties made ... under the Authority
of the United States, shall be the supreme Law of the Land"
is inapplicable to 1677 treaty between Indian tribe and British
crown; given this court's rejection of contention, advanced under
various theories, that such treaty is federal law, lower court's
holding that tribe's treaty claims arise under Virginia law has
become law of case; absent waiver of sovereign immunity, state and
its agents are not subject to suit under state law on tribe's claims
that state agency's issuance of permit to build reservoir that would
require flooding of "buffer zone" surrounding reservation
and endanger tribe's fishing and hatchery operations violates its
1677 treaty.
Cowan v. Tohono O'Odham Nation
Docket
No. 05-1273
Briefs
& Pleadings
Subjects: Sovereign immunity -- Tohono
O'odham Nation of Arizona; Employees, Dismissal of -- Tohono O'odham
Nation of Arizona; Jurisdiction -- Arizona.
*Issues: Native American tribe's sovereign
immunity bars lawsuit by former tribal employee alleging that she
was fired without cause, that tribe failed to reimburse her for
her out-of-pocket expenses, and that tribe refused to compensate
her for her unused annual leave; contention that tribe waived its
immunity by failing to appoint grievance committee pursuant to its
personnel policies and procedures manual when employee filed grievance
is meritless, because any waiver of tribal immunity must be clear
and unequivocal.
History: Petition for certiorari was filed
on 4/3/2006. Petition was denied on 6/05/06.
*Holding below: ( copy of the unreported
decision is not yet available) Cowan v. Tohono O'Odham Nation,
No. 2 CA-CV 05-0024, Ct Appeals AZ, Div. 2. (Aug. 4, 2005) (1) Did
Arizona Court of Appeals err in holding that tribe has immunity
from suit? (2) Did Arizona Superior Court err in holding that Arizona
court lacked subject matter jurisdiction over petitioner's suit?
Seneca Nation of Indians v. New York
Docket
No. 05-905
Subjects: Seneca Nation of New York;
Tonawanda Band of Seneca Indians of New York; New York (State);
New York State Thruway Authority; Conveyancing; Grand Island (N.Y.
: Island); Niagara River (N.Y. and Ont.); Treaties -- Ratification;
United States. Trade and Intercourse Act; Land tenure; Interest
(Ownership rights); Indian title -- New York (State); Treaty of
Canandaigua (1794).
*Issues: (1) Did Senecas hold title to
islands in Niagara River under Treaty of Canandaigua, 7 Stat. 44
(Nov. 11, 1794), so that New York's purchase of islands from Senecas
in 1815 without federal approval violated Non-Intercourse Act,
25 U.S.C. § 177? (2) Do this court's precedents require
that ambiguous treaty terms be read liberally in favor of Indian
parties, notwithstanding state non-party's later claim of pre-existing
rights to land at issue and invocation of United
States v. Minnesota, 270
U.S. 181 (1926)? (3) Should treaties made between Indian tribes
and British crown before Constitution be interpreted according to
same rules applicable to treaties between Indian tribes and United
States after Constitution, such that title to Indian land may not
be extinguished without plain and unambiguous expression of intent
by sovereign?
History: Petition for certiorari was filed
on 1/17/2006. Petition was denied on 6/05/06.
*Holding below: Seneca
Nation of Indians v. New York,
382 F.3d 245. 2nd Cir. Although New York's 1815 purchase of
Niagara River islands from Seneca Nation of Indians did not comply
with Non-Intercourse Act, which bars conveyances by Indians to non-Indians
unless made or ratified by Congress, New York already had title
to islands when it ostensibly purchased them from Senecas and thus
conveyance was not subject to Non-Intercourse Act requirements,
Seneca title having been extinguished by 1764 treaties between tribe
and Great Britain, and New York having acquired title upon defeat
of British in Revolutionary War; 1794 Treaty of Canandaigua did
not divest New York of title to islands and return it to Senecas.
Related News Stories: U.S. Supreme
Court rejects another tribal land claim (Indianz.com)
6/6/06
Salinas v. Lamere
Docket
No. 05-1189
Briefs
& Pleadings
Subjects: Jurisdiction -- California;
Civil jurisdiction -- California; United States. Public Law 280;
Tribal membership -- Pechanga Band of Luiseno Mission Indians of
the Pechanga Reservation, California.
*Issues: (1) Does Pub. L. No. 280 confer
subject matter jurisdiction on California courts in civil suit by
individual Native Americans that seeks injunctive relief under California
law against other individual Native Americans to prevent them from
violating constitution and laws of their tribe? (2) Does decision
below conflict with federal court decisions whose holdings are reflected
in lower court's prior decision in Turner
v. Martire, 82
Cal. App. 4th 1042, 99 Cal. Rptr. 2d 587 (Cal. App. 2000)?
History: Petition for certiorari was filed
on 3/15/2006. Petition was denied on 5/22/06.
*Holding below: Lamere v. Superior Court,
31
Cal.Rptr.3d 880, Court of Appeal, CA. Pub. L. No. 280, 28
U.S.C. § 1360, which provides that certain states, including
California, "shall have jurisdiction over civil causes of action
between Indians or to which Indians are parties which arise in the
areas of Indian country ... to the same extent that such State has
jurisdiction over other civil causes of action," to extent
that it grants civil jurisdiction, was primarily intended to redress
lack of adequate Indian forums for resolving private legal disputes
between reservation Indians and between Indians and other private
citizens, and thus does not extend to suit by alleged members of
California Indian tribe challenging their disenrollment, which is
not private legal dispute between reservation Indians, but goes
to heart of tribal sovereignty; despite naming of individual members
of tribe's enrollment committee as defendants, dispute remains essentially
between plaintiffs and tribe.
Cayuga Indian Nation of New York v. Pataki
Docket
No. 05-982
Briefs
& Pleadings
Subjects: Pataki, George E., 1945-; Cayuga
Nation of New York -- Claims; Damages -- Cayuga Nation of New York;
Eviction -- Cayuga Nation of New York; Trespass; New York (State);
Laches -- United States.
*Issues: Did Second Circuit err in interpreting
City of Sherrill v. Oneida Indian Nation of New York to require
"dismissal ab initio" of claims that are timely under
28
U.S.C. § 2415 and are brought by Indian tribes and United
States to obtain monetary damages from state for lands taken in
violation of Nonintercourse Act and federal treaties?
History: Petition for certiorari was filed
on 2/03/2006. Petition was denied on 5/15/06.
*Holding below: Cayuga
Indian Nation of New York v. Pataki, 413
F.3d 266, 2nd Cir. Based on City
of Sherrill v. Oneida Indian Nation of New York, 544
U.S. 197, 73 U.S.L.W. 4242 (2005), which held that equitable
doctrines, such as laches, acquiescence, and impossibility, can
be applied to Indian land claims in appropriate circumstances even
when claims are legally viable and within limitations period, laches
bars Indian tribe's possessory claims, first filed in 1980, to land
that it ostensibly ceded to New York by 1795 and 1807 treaties that,
because they were never ratified by federal government, are invalid
under Nonintercourse Act; tribe's inability to secure relief on
its possessory land claims forecloses its claims for damages based
on trespass; United States's 1992 intervention in suit based on
events that occurred 200 years ago to assert interests of tribe,
rather than its own interests, falls within heartland of exception
to rule against subjecting United States to laches defense.
Related News Stories: Cayuga
land claim case ends abruptly; it's over (Syracuse
Post-Standard) 6/14/06. Supreme Court drops Cayuga land claim
case. (Indian
Country Today) 5/19/06. Moves made to dismiss all land claims
(Syracuse
Post-Standard) 5/17/06. U.S. Supreme Court refuses to clarify
tribal claims. (Indianz.com)
5/16/06. Officials see demise of Oneidas' claim (Syracuse
Post-Standard) 5/16/06 Land-claim legal ground expected to stay
shaky (Syracuse
Post-Standard). 5/10/06. Cayugas respond to petition (Finger
Lake Times) 4/19/06
Chayoon v. Sherlock
Docket
No. 05-10180
Briefs
& Pleadings
Subjects: Mashantucket Pequot Gaming
Enterprise -- Employees; Employees, Dismissal of -- Mashantucket
Pequot Tribe of Connecticut; Casinos -- Mashantucket Pequot Tribe
of Connecticut; Gambling on Indian reservations; Indian gaming --
Mashantucket Pequot Tribe of Connecticut; United States. Family
and Medical Leave Act of 1993; Sovereign immunity -- Mashantucket
Pequot Tribe of Connecticut.
*Issues: not available from USLW
History: Petition for certiorari was filed
on 3/29/2006. Petition was denied on 5/15/06.
*Holding below: Chayoon
v. Sherlock, 877
A.2d. 4, Appellate Ct. of CT, (from Westlaw) The Appellate
Court, Bishop, J., held that:
(1) Indian tribe did not waive its sovereign immunity, and
(2) allegation that casino employees violated FMLA was insufficient
to strip employees of the protections of tribal immunity.
Affirmed.
United States v. Pataki
Docket
No. 05-978
Subjects: Pataki, George E., 1945-; Cayuga
Nation of New York -- Claims; Damages -- Cayuga Nation of New York;
Eviction -- Cayuga Nation of New York; Trespass; New York (State);
Laches -- United States.
*Issues: Did court of appeals err in holding
that Indian tribes and United States were barred by laches from
suing New York for money damages as compensation for state's acquisition
of tribal lands in violation of federal law?
History: Petition for certiorari was filed
on 2/03/2006. Petition was denied on 5/15/06.
*Holding below: Cayuga
Indian Nation of New York v. Pataki, 413
F.3d 266, 2nd Cir. Based on City
of Sherrill v. Oneida Indian Nation of New York, 544
U.S. 197, 73 U.S.L.W. 4242 (2005), which held that equitable
doctrines, such as laches, acquiescence, and impossibility, can
be applied to Indian land claims in appropriate circumstances even
when claims are legally viable and within limitations period, laches
bars Indian tribe's possessory claims, first filed in 1980, to land
that it ostensibly ceded to New York by 1795 and 1807 treaties that,
because they were never ratified by federal government, are invalid
under Nonintercourse Act; tribe's inability to secure relief on
its possessory land claims forecloses its claims for damages based
on trespass; United States's 1992 intervention in suit based on
events that occurred 200 years ago to assert interests of tribe,
rather than its own interests, falls within heartland of exception
to rule against subjecting United States to laches defense.
Related News Stories: Moves
made to dismiss all land claims (Syracuse
Post-Standard) .Land-claim legal ground expected to stay shaky
(Syracuse
Post-Standard) 5/10/06
Subjects: Parent and child (Law); Trials
(Custody of children) -- California; Indian children -- Legal status,
laws, etc.; Child welfare; United States. Indian Child Welfare Act
of 1978; California -- Jurisdiction; United States. Public Law 280;
Exclusive jurisdiction; Jurisdiction -- Tribes -- California; Jurisdiction
-- United States -- States.
*Issues: Does Pub. L. 280, 18
U.S.C. § 1162 and 28
U.S.C. § 1360, deprive Indian tribes in Pub. L. 280 states
of their exclusive jurisdiction to conduct involuntary child dependency
proceedings involving Indian children domiciled on reservation,
notwithstanding Indian Child Welfare Act,
25 U.S.C. §§ 1901-1963?
History: Petition for certiorari was filed
on 12/19/2005. Petition was denied on 5/1/06.
*Holding below: Doe
v. Mann, 415
F.3d 1038, 9th Cir. Child custody proceeding relating
to Indian child residing on reservation is "civil cause of
action between Indians or to which Indians are parties" and
involves civil laws "that are of general application to private
persons" so as to fall within jurisdiction of California courts
under 28
U.S.C. § 1360(a) and thus within exception to exclusive
jurisdiction over child custody matters granted to tribal courts
under Indian Child Welfare Act, 25
U.S.C. § 1911(a).
Related News Stories: U.S. Supreme Court
won't hear Indian child welfare case (Indianz.com)
5/2/06, 9th Circuit rules against tribe in California ICWA
case. (Indianz.com)
7/20/05.
Subjects: Parent and child (Law); Trials
(Custody of children) -- California; Indian children -- Legal status,
laws, etc.; Child welfare; United States. Indian Child Welfare Act
of 1978; California -- Jurisdiction; United States. Public Law 280;
Exclusive jurisdiction; Jurisdiction -- Tribes -- California; Jurisdiction
-- United States -- States.
*Issues: Do
28 U.S.C. § 1331 and Indian Child Welfare Act, 25
U.S.C. §§ 1901-1963, authorize lower federal courts
to review and invalidate final state court judgments in child custody
proceedings involving Indian children, or is such review barred
by Rooker-Feldman doctrine?
History: Petition for certiorari was filed
on 12/19/2005. Petition was denied on 5/1/06.
*Holding below: Doe
v. Mann, 415
F.3d 1038, 9th Cir. Although Rooker-Feldman doctrine
ordinarily leaves federal district courts without subject matter
jurisdiction to hear appeal that effectively seeks review of state
court judgment, Indian Child Welfare Act, at 25
U.S.C. § 1914, which authorizes specified aggrieved parties
to petition "any court of competent jurisdiction" to invalidate
certain state court child custody proceedings concerning foster
care placement or termination of parental rights, expresses Congress's
intent that federal courts be empowered to invalidate state court
judgments in this limited arena and, to that extent, counteracts
application of Rooker-Feldman doctrine in this case, in which parent
challenges state judgment terminating her parental rights.
Related News Stories: U.S. Supreme Court
won't hear Indian child welfare case (Indianz.com)
5/2/06, 9th Circuit rules against tribe in California ICWA case.
(Indianz.com)
7/20/05.
Beams v. Norton
Docket
No. 05-900
Subjects: Trusts
and trustees -- United States; Indian preference in hiring --
United States; United States. Bureau of Indian Affairs; United
States. Wheeler-Howard Act; Marijuana -- Law and legislation
-- United States; Trust lands -- Indian Country (U.S.).; Indian
reservations -- United States; United States. Civil Rights Act
of 1964 – Title
7; United States. Age Discrimination in Employment Act of 1967.
*Issues: (1) Will U.S. government honor
its trust responsibility to Native American people? (2) Will U.S.
government honor Wheeler Howard Act, also known as Indian Reorganization
Act, in its Indian preference regulations in employing Indian people
in Bureau of Indian Affairs? (3) Does U.S. government endorse illegal
cultivation of marijuana on Indian trust lands on Indian reservations?
(4) Does U.S. government endorse cussing of employees by supervisors
as part of official business?
History: Petition for certiorari was filed
on 11/29/05. Petition was denied on 2/27/06.
*Holding below: Beams
v. Norton, 141
Fed. Appx. 769, 10th Cir. Dismissal of individual's claims
under Indian Preference Act, and summary judgment on his claims
under Title VII of 1964 Civil Rights Act and Age Discrimination
in Employment Act, are affirmed for reasons stated by district court,
which ruled, inter alia, that Indian Preference Act does not confer
private right of action.
Wilbur v. Locke
Docket
No. 05-740
Subjects: Salish Trust; Trading Post
at March Point; Cigarettes -- Taxation -- Washington (State); United
States. Tax Injunction Act; Cigarette vendors -- Swinomish Indians
of the Swinomish Reservation -- Taxation; Contracts; Standing to
sue; Parties to actions -- Swinomish Indians of the Swinomish Reservation;
Intergovernmental agreements -- Swinomish Indians of the Swinomish
Reservation; Intergovernmental agreements -- Washington (State)..
*Issues: (1) Does First Amendment petition
clause guarantee of right to seek judicial redress of grievances
require that Rule 19(b) be construed and applied in manner that
will avoid dismissal of suit for failure to join indispensable party
if effect of such dismissal would be to deprive plaintiff, and every
member of public, of judicial forum in which asserted constitutional
or statutory violations could be litigated? (2) Is Ninth Circuit's
adherence to rule that, in all cases in which plaintiff is challenging
validity of contract, every party to that contract is indispensable
party whose absence requires dismissal of suit pursuant to Rule
19(b), inflexible rule in conflict with this court's decisions in
Provident
Tradesmens Bank & Trust v. Patterson, 390
U.S. 102 (1968), and National
Licorice Co. v. NLRB, 309
U.S. 350 (1940)? (3) Is it error to grant Rule 19(b) dismissal
of plaintiff's suit against state officials on grounds that Indian
tribe is indispensable party when (a) tribe knows that lawsuit is
pending, (b) interests of tribe and state officials are identical,
(c) tribe refuses to waive sovereign immunity and to consent to
being party defendant and thus cannot be joined as party, and (d)
tribe files pleadings in lawsuit in support of positions taken by
state officials and urges court to dismiss lawsuit because tribe
is indispensable party?
History: Petition for certiorari was filed
on 12/06/2005. Petition was denied on 2/21/06.
*Holding below: Wilbur
v. Locke, 423
F.3d 110, 9th Cir. In lawsuit against state officials
seeking to invalidate compact between state and Indian tribe relating
to taxation of cigarette sales on tribe's reservation, tribe has
interest in retaining valuable benefits granted by compact that
cannot be represented by state and is thus necessary party whose
sovereign immunity, which has been neither waived nor abrogated,
precludes its joinder, thus requiring dismissal of suit under Fed.R.Civ.P.
19(b), after balancing factors set forth therein, for lack of indispensable
party; contention that First Amendment's petition clause prohibits,
or at least weighs against, dismissal of this action for nonjoinder
is meritless.
Shobar v. California
Docket
No. 05-707
Subjects: Santa Ynez Band of Chumash
Mission Indians of the Santa Ynez Reservation, California; Indian
gaming -- Santa Ynez Band of Chumash Mission Indians of the Santa
Ynez Reservation, California; Gambling on Indian reservations --
California; Non-Indians -- Officials and employees -- Santa Ynez
Band of Chumash Mission Indians of the Santa Ynez Reservation, California;
Intergovernmental agreements -- Santa Ynez Band of Chumash Mission
Indians of the Santa Ynez Reservation, California; Intergovernmental
agreements -- California; Concerned Citizens of Santa Ynez Valley
(Calif.); Parties to actions; United States. Indian Gaming Regulatory
Act; California; Federal question; Jurisdiction -- United States.
*Issues: (1) Does IGRA empower governor
of affected state to negotiate terms of tribal-state compact that
violate constitutional rights of non-Indian workers in Indian casinos
and businesses? (2) Is Tenth Circuit's interpretation of IGRA
Section 2710(d)(3) in
Pueblo of Santa Ana v. Kelly, 104
F.3d 1546 (10th Cir. 1997), correct? (3) Are Indian tribes necessary
or indispensable parties to lawsuit brought by non-Indian citizens
against their government for declaratory relief to interpret their
rights and state's duties under tribal-state compact?
History: Petition for certiorari was filed
on 11/30/2005. Petition was denied on 1/23/06.
*Holding below: Shobar
v. California, 134
Fed. Appx. 184, 9th Cir. District court properly dismissed
non-Indian casino workers' claim against state of California, regarding
whether Indian tribal employer may participate in state workers'
compensation system or establish its own system pursuant to tribal-state
compact, because no private cause of action exists to enforce state-tribal
compact under either Indian Gaming Regulatory Act or terms of compact
itself; even if employees could state claim, suit could not proceed
because Indian tribe is indispensable party under Fed.R.Civ.P.
19, and tribal sovereignty precludes tribe's joinder.
Peabody Western Coal Company v. Equal Employment
Opportunity Commisssion
Docket
No. 05-353
Briefs
& Pleadings
Subjects: United States. Equal Employment
Opportunity Commission; United States. Civil Rights Act of 1964;
Discrimination in employment; Indian preference in hiring; Navajo
Nation, Arizona, New Mexico & Utah -- Members; Peabody Western
Coal Company; Parties to actions.
*Issues: May plaintiff join as involuntary
defendant under Fed.R.Civ.P. 19 party that plaintiff is prohibited
from suing directly?
History: Petition for certiorari was filed
on 09/15/2005. Petition was denied on 1/23/06.
*Holding below:
Equal
Opportunity Commission v. Peabody Western Coal Company, 400
F.3d 774. 9th Cir. Despite contentions that tribal sovereign
immunity and Equal Employment Opportunity Commission's inability
to bring direct suit against Navajo Nation under Title VII of 1964
Civil Rights Act preclude joinder, EEOC may join Navajo Nation in
its action alleging that employer that operates coal mines under
leases from Nation that require employment preference be given to
Navajos violated Title VII by refusing to hire non-Navajo Native
Americans, because (i) Nation is necessary party, (ii) EEOC seeks
no affirmative relief against Nation, (iii) tribal sovereign immunity
does not apply in action by EEOC, and (iv) circuit precedent, which
is consistent with U.S. Supreme Court's clarification regarding
complete relief, other circuits' joinder rulings, and purpose and
text of Fed.R.Civ.P.
19, does not require that there be direct cause of action against
party to be joined if joinder is for sole purpose of effecting complete
relief between parties.
Patterson v. New York
Docket
No. 05-550
Subjects: Reserved fishing rights --Tuscarora
Nation of New York; Treaty rights --Tuscarora Nation of New York;
Treaty of Canandaigua (1794); Land tenure -- Seneca Nation of New
York; Ice fishing -- New York (State ) -- Niagara County; Wilson-Tuscarora
State Park (N.Y.); Fishery law and legislation -- New York (State);
Tuscarora Nation of New York -- Members.
*Issues: (1) Are Tuscarora Nation's fishing
rights reserved in 1794 Treaty of Canandaigua wholly derived from
and dependent upon continued ownership of lands by Seneca Nation?
(2) Could Tuscarora Nation's fishing rights reserved in 1794 Treaty
of Canandaigua be divested by implication by Seneca Nation in agreement
to which Tuscarora Nation was not party?
History: Petition for certiorari was filed
on 10/25/2005. Petition was denied on 1/9/06.
*Holding below: People
v. Patterson, 5
N.Y.3d 91, Court of Appeals of NY. Seneca Indians surrendered
their ownership of land at issue in this case in 1797, and thus,
because 1794 Treaty of Canandaigua did not grant members of Tuscarora
Indian Nation separate usufructuary fishing rights in Seneca lands
independent of Seneca's possessory interest in land, members of
Tuscarora Nation do not now have fishing rights in land, and member
of Tuscarora Nation may be fined by New York for ice fishing on
land previously held by Seneca's without proper tag in violation
of state law.
Lummi Nation v. Samish Indian Tribe
Docket
No. 05-445
Briefs
& Pleadings
Subjects: Samish Indian Tribe, Washington;
Lummi Tribe of the Lummi Reservation, Washington; Treaty rights
-- Samish Indian Tribe, Washington; Fishing rights -- Samish Indian
Tribe, Washington; Washington (State); Federal recognition of Indian
tribes -- Samish Indian Tribe, Washington.
*Issues: (1) Does change in law constitute
"extraordinary circumstances" to allow reopening 25-year-old
final judgment pursuant to Fed.R.Civ.P. 60(b)(6)? (2) Is relief
available under Fed.R.Civ.P. 60(b)(6) for alleged misconduct of
party in separate proceeding more than one year after judgment in
this case? (3) Does barring petitioners from participating in administrative
proceedings and litigation on grounds that those proceedings will
not affect their treaty rights deny petitioners' right to due process
as result of Ninth Circuit decision below?
History: Petition for certiorari was filed
on 10/03/2005. Petition was denied on 1/9/06.
*Holding below: Samish
Indian Tribe v. State of Washington, 394
F.3d 1152,
9th Cir. Although federal recognition is not necessary for exercise
of treaty fishing rights by signatory tribe, it is sufficient condition
for exercise of those rights, and is also determinative of issue
of tribal organization, and thus district court that in 1979 held
that Samish tribe was not entitled to treaty fishing rights because
it had not maintained organized tribal structure abused its discretion
in denying, in 2002, tribe's Fed.R.Civ.P. 60(b)(6) motion for relief
from 1979 judgment, which motion was based on extraordinary circumstance
of tribe's having obtained federal recognition in 1996.
Skokomish Indian Tribe v. United States
Docket
No. 05-434
Briefs
& Pleadings
Subjects: Skokomish Indian Tribe of the
Skokomish Reservation, Washington; United States. Federal Power
Act; Law -- Washington (State); Tacoma (Wash.); Skokomish Indian
Tribe of the Skokomish Reservation, Washington -- Treaties; Tacoma
Public Utilities (Tacoma, Wash.); Cushman Hydroelectric Project
(Tacoma, Wash.); Hydroelectric power plants; Public lands; Floods;
Dams; Fisheries -- Protection -- Skokomish Indian Tribe of the Skokomish
Reservation, Washington; Fishes -- Migration.
*Issues:
Whether congressionally-ratified treaty that has been held to
provide implied right of action against states and their instrumentalities,
allows cause of action for damages against municipality alleged
to have knowingly and without congressional or state authorization
taken nearly one-half of water flowing through reservation and thus
destroyed substantial portion of off- and on-reservation treaty-protected
fisheries?
History: Petition for certiorari was filed
on 10/03/2005. Petition was denied on 1/9/06.
*Holding below: Skokomish
Indian Tribe v. United States, 410
F.3d 506, 9th Cir. Indian tribe's suit for damages against city
and public utility stemming from hydroelectric project's flooding
of Indian land, silting of river, and blocking of fish migration
in alleged violation of tribe's treaty rights is not cognizable
under treaty, which lacks language supporting damages claims against
nonparties, and may not be brought by tribe or by individual tribal
members under 42
U.S.C. § 1983.
Dalton v. Pataki
Docket
No. 05-368
Subjects: Intergovernmental agreements
-- Tribes -- New York; Intergovernmental agreements -- New York;
Governors -- New York -- Rights and responsibilities; United States.
Indian Gaming Regulatory Act; Indian gaming -- New York; Gambling
on Indian reservations -- New York; Separation of powers -- New
York; New York. Constitution; Video lottery terminals.
*Issues: (1) In enacting Indian Gaming
Regulatory Act ("IGRA"), did--and, if so, could--Congress
empower states to pass laws that were otherwise in direct violation
of Bill of Rights of their own Constitutions? (2) If Bill of Rights
of state's Constitution prohibits commercial gambling but allows
limited forms of charitable gaming, does IGRA nevertheless empower
or, indeed, require such state to pass law permitting Indian tribes
to engage in commercial gambling?
History: Petition for certiorari was filed
on 09/15/2005. Petition was denied on 11/28/05.
*Holding below: Dalton
v. Pataki, 5
N.Y.3d 243, Court of Appeals of New York. Under Indian Gaming
Regulatory Act, "Class III gaming," which is most heavily
regulated type of gaming and includes casino gambling, may be conducted
on Indian land only in state that otherwise "permits such gaming
for any purpose by any person, organization, or entity," and
thus, because New York allows some forms of Class III gaming for
certain charitable purposes, such gaming may lawfully be conducted
on Indian land in New York despite provision of New York Constitution
that, subject to specific exceptions, prohibits commercial gambling.
Karr v. Pataki
Docket
No. 05-361
Subjects: United States. Indian Gaming
Regulatory Act; United States. Congress -- Powers and duties; State
governments -- United States -- Powers and duties; Intergovernmental
agreements; Indian gaming -- Class II -- United States; Indian gaming
-- Class III -- United States; Gambling on Indian reservations --
United States; California v. Cabazon.
*Issues: (1) Whether Congress exceeded
its power when--to promote tribal economic interests--it chose Indian
Gaming Regulatory Act's, 25
U.S.C. 2701 et seq. ("IGRA") compacting process, which
requires States alone to bear substantial expense and burdens in
negotiation of and entry into Tribal-State gaming compact that would
permit tribes to conduct megabillion dollar commercialized casino
gaming--despite such action by State and its officials being in
defiance of century old prohibition on such gaming contained in
people's Constitution and their Bill of Rights? (2) Whether IGRA
expands powers of executive and legislative branches of State government
beyond their enumerated powers, so that these branches of government
could enter into Tribal-State casino gaming compact--despite their
action being in defiance of powers they possess under State Constitution?
(3) Whether courts misperceive qualified non-brightline rule of
California
v. Cabazon, 480
U.S. 202 (1987) when they hold that because State permits very
limited charitable Class III gaming it must, under IGRA, allow tribes
to conduct large-scale commercialized Class III casino gaming--despite
IGRA's express legislative history that Cabazon was only to be applied
to Class II gaming and charitable gaming of any sort applies only
to justify Class II gaming?
History: Petition for certiorari was filed
on 09/15/2005. Petition was denied on 11/28/05.
*Holding below: Dalton
v. Pataki, 5
N.Y.3d 243, Court of Appeals of New York. Under Indian Gaming
Regulatory Act, "Class III gaming," which is most heavily
regulated type of gaming and includes casino gambling, may be conducted
on Indian land only in state that otherwise "permits such gaming
for any purpose by any person, organization, or entity," and
thus, because New York allows some forms of Class III gaming for
certain charitable purposes, such gaming may lawfully be conducted
on Indian land in New York despite provision of New York Constitution
that, subject to specific exceptions, prohibits commercial gambling.
Nakai v. United States
Docket
No. 05-6713
Subjects: Indian jurors; Fair trial;
United States. Federal Bureau of Investigation; Trials (Murder);
Testimony; Evidence (Hearsay).
*Issues: (not available)
History: Petition for certiorari was filed
on 9/26/2005. Petition was denied on 10/31/05.
*Holding below: United
States v. Nakai, 413
F.3d 1019, 9th Cir. (From Westlaw) The Court of Appeals,
Noonan, Circuit Judge, held that:
(1) fact that only 6.1 percent of jurors who reported for jury trial
were Native American did not deprive defendant of a fair representation
of the community;
(2) FBI agent's purported testimony about statements by defendant
to law enforcement investigators would be hearsay;
(3) submission of conspiracy jury instruction was harmless error;
and
(4) evidence was sufficient to prove that shooting victim was alive
before defendant shot him.
Affirmed.
In re Kanon'ke:haka Kaianereh'ko:wa Kanon'ses:neh
Docket
No. 05-165
Subjects: Constitutional law; Separation
of powers; Oneida Nation of New York; Saint Lawrence County (N.Y.);
New York (State); St. Regis Band of Mohawk Indians of New York.
*Issues: Do constitutional checks and
balances preclude final order by court below terminating indigenous
constitutional title on basis of error of law alone that federal
law precludes constitutional law, rather than other way around?
History: Petition for certiorari was filed
on 08/02/05. Petition was denied on 10/11/05.
*Holding below: . Court determines sua
sponte that it lacks jurisdiction over this appeal because final
order has not been issued by district court as contemplated by 28
U.S.C. § 1291, and thus appeal is dismissed.
Longie v. Spirit Lake Tribe
Docket
No. 05-5132
Subjects: Quiet title actions; Spirit
Lake Tribe, North Dakota (formerly known as the Devils Lake Sioux
Tribe) -- Members; Spirit Lake Tribe, North Dakota (formerly known
as the Devils Lake Sioux Tribe); Federal question; Jurisdiction
-- United States; Mandamus.
*Issues: not available
History: Petition for certiorari was filed
on 05/11/2005. Petition was denied on 10/3/05.
*Holding below: Longie
v. Spirit Lake Tribe , 400
F.3d 586, 8th Cir. The Court of Appeals, Wollman, Circuit Judge,
held that:
(1) court lack federal question jurisdiction, and
(2) court lacked mandamus jurisdiction. Affirmed.
Wyoming Saw Mills, Inc. v. United States
Docket
No. 04-1175
Briefs
& Pleadings
Subjects: Medicine Wheel National Historic
Landmark (Wyo.); Wyoming Sawmills; United States. Forest Service;
United States. National Forest Management Act of 1976; Historic
preservation -- Planning; Freedom of religion -- United States;
United States. Constitution. 1st Amendment; Standing to sue.
*Issues: (1) Does timber company have
Article III standing to challenge, as violation of establishment
clause, U.S. Forest Service decision to manage 50,000 acres of national
forest as "sacred site" because of "a resurgence
of Native American spiritualism and [the area's] religious importance
to American Indians," when timber company is: (a) denied opportunity
to bid for timber sales within that area, and (b) "directly
affected" by management of area as "sacred site"?
(2) Did U.S. Forest Service violate establishment clause when it
decided to manage 50,000 acres of national forest as "of religious
importance to American Indians" and excluded all human activity
but their own from that "sacred area"?
History: Petition for certiorari was filed
on 03/02/2005. Petition was denied on 10/3/05.
*Holding below: Wyoming
Sawmills Inc. v. United States Forest Service
383
F.3d 1241, 10th Cir. Timber company's claim that U.S. Forest
Service's plan to consult with federal, state, and local agencies
and Native American groups to minimize impact of agency actions
on historical resources and traditional cultural uses in 18,000-acre
area surrounding Native American sacred landmark deprives company
of opportunity to bid on future timber sales is not redressable
by favorable court decision because any future sales are within
agency's discretion, and thus company lacks standing to assert establishment
clause challenge to plan.
Related News Stories: See the Becket
Fund for religious Liberty Web site, Supreme Court will not
hear sacred site challenge (Indianz.com)
10/4/05.
Delaware Tribe of Indians v. Cherokee Nation
of Oklahoma
Docket
No. 04-1368
Briefs
& Pleadings
Subjects: Federal recognition of Indian
tribes -- Delaware Tribe of Indians, Oklahoma; Restorations, Political
-- Delaware Tribe of Indians, Oklahoma; Cherokee Nation of Oklahoma;
United States. Dept. of the Interior; United States. Federally Recognized
Indian Tribe List Act.
*Issues: (1) Did court of appeals err
in holding that this court's decisions in Cherokee Nation v. Journeycake
and Delaware Indians v. Cherokee Nation necessarily determined that
Delaware Tribe of Indians abandoned its organized tribal status
in 1867 agreement with Cherokee, which holding conflicts with this
court's more recent declaration in Delaware
Tribal Business Committee v. Weeks, 430
U.S. 73 (1977), that "[d]espite their association with
the Cherokees, these Indians ... have over the years maintained
a distinct group identity, and they are today a federally recognized
tribe"? (2) Did court of appeals err in giving no deference
to interpretation of 1867 agreement made by secretary of interior
regarding Delaware Tribe's status, and in refusing to consider effect
of post-1867 relations between Delaware Tribe and United States
despite secretary's express reliance on legislative action and administrative
practice to confirm her interpretation? (3) When secretary determined
in 1996, on record following full administrative review with notice
and opportunity for all affected parties to be heard, that 1979
letter issued by subordinate official limiting federal relations
with Delaware Tribe was erroneous and should be withdrawn, and direct
federal relations restored, did court of appeals err in holding
that 1994 Federally Recognized Indian Tribe List Act and federal
acknowledgment procedures of 25
C.F.R. Part 83 prevented secretary from so correcting that error?
History: Petition for certiorari was filed
on 04/11/2005. Petition was denied on 10/03/05.
*Holding below: Cherokee
Nation of Oklahoma v. Norton, 389
F.3d 1074, 10th Cir. Department of Interior's 1996 decision
to grant federal recognition to Delaware Tribe of Indians as tribal
entity was improper interpretation of 1867 agreement between Delaware
Tribe and Cherokee Nation and contrary to rulings in Cherokee
Nation v. Journeycake, 155
U.S. 196 (1894), and Delaware
Indians v. Cherokee Nation,
193 U.S. 127 (1904), that Delaware Tribe and its members became
incorporated into Cherokee Nation under such agreement; agency's
decision also violated Section 103(3) of Federally Recognized Indian
Tribe List Act, and its use of "retract and declare" procedure
in recognizing tribe was arbitrary and capricious in violation of
Administrative Procedure Act, because agency impermissibly elected
not to follow procedures set out in 25
C.F.R. Part 83 for recognizing Indian tribe and did not even
properly waive application of such procedures.
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Cases Vacated/Remanded
Subjects: Government -- Programs -- Hawaii; Native Hawaiians; Hawaii. Office of Hawaiian Affairs; Taxation -- Hawaii; Equality before the law -- Hawaii; Finance -- United States; Standing to sue -- United States; Trust lands -- United States; Public lands -- United States; Leases -- United States.
*Issues: Do state taxpayers have standing
to challenge actions of state government or state agencies that
expend, or involve use of, state taxpayer dollars, simply because
they pay taxes to state?
History: Petition for certiorari was filed
on 2/02/2006. The petition for a writ of certiorari is granted.
The judgment is vacated and the case is remanded to the U.S. Court
of Appeals for the Ninth Circuit for further consideration in light
of DaimlerChrysler
Corp. v. Cuno, 547 U.S. ___, 74 U.S.L.W. 4233 (2006). The Chief
Justice took no part in the consideration or decision of this petition.
*Holding below: Arakaki
v. Lingle, 423
F.3d 954, 9th Cir. State taxpayers have standing to bring lawsuit
claiming that appropriation of state revenue to support state programs
that limit benefits to "native Hawaiians and Hawaiians"
violates 14th Amendment's equal protection clause.
Related News Stories: U.S. Supreme
Court intervenes in Native Hawaiian case. (Indianz.com)
6/13/06.
Joan Wagnon, Secretary, Kansas Department of
Revenue, et al., v. Prairie Band Potawatomi Nation
2005
WL 1520600
Docket
No. 04-1740
Briefs
& Pleadings
Subjects: Motor vehicles -- Registration
and transfer -- Prairie Band of Potawatomi Indians, Kansas; Motor
vehicles -- Registration and transfer -- Kansas; Jurisdiction.
*Issues: (1) Should interest-balancing
test in White Mountain Apache Tribe v. Bracker be applied to preempt
state's off-reservation enforcement of its motor vehicle code? (2)
Should court abandon White Mountain Apache interest-balancing test
in favor of preemption analysis based on principle that Indian immunities
are dependent upon congressional intent?
History: Petition for certiorari was filed
on 06/23/2005. Judgment vacated and remanded to the 10th Cir. 12/12/05.
*Holding below: Prairie
Band Potawatomi Nation v. Wagnon, 402
F.3d 1015, 10th Cir. District court did not abuse its discretion
when it permanently enjoined Kansas from further application and
enforcement of its motor vehicle registration and titling laws against
federally recognized Indian tribe, its members, and any persons
who operate or own vehicle properly registered and titled under
tribe's motor vehicle code, district court havingappropriately balanced
interests at issue in accordance with White
Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980), and determined that federal and tribal
interests in promoting strong tribal economic development, self-sufficiency,
and self-governance preempt state's asserted interest in public
safety.
Related News Stories: Supreme Court takes
action on tribal car tag case (Indianz.com)
12/12/05.
* "Issues" and
"Holding below" reproduced with permission from The United States
Law Week on the Internet and print at: http://www.bna.com
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by The Bureau of National Affairs, Inc. (800-372-1033)
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