Supreme Court 2010 Mid-Term Update

Much has happened and much is in limbo in this Term so far. Our two previous previews are here and here. Our previous mid-Term update is here.

Granted Cases

1. United States v. Tohono O’odham Nation (09-846).

The opinion in this matter will likely be available at any time, as many cases submitted to the Court around the same time have been decided already. If the Court does not issue an opinion next week, it may mean that there is a significant dissent or concurrence being generated. Oral argument recaps are here and here (from Millett and Meggesto). The oral argument transcript is here.

2. Madison County v. Oneida Indian Nation (10-72). GVR.

This is the big surprise of the Term, with the Supreme Court granting cert on the question whether tribes are immune from foreclosures by counties for failure to pay property taxes, and then the Oneida Indian Nation enacting an ordinance purporting to waive its immunity from such suits. Over the petitioners’ objections, the Court remanded the case back to the Second Circuit for reconsideration in light of Oneida’s waiver.

3. United States v. Jicarilla Apache Nation (10-382).

Other than Madison County, this is so far the biggest grant of the Term, with the United States seemingly seeking to limit its trust obligations to Indian nations dramatically. The case involves the government’s attorney-client privilege against the trust beneficiary in relation to trust-related documents. Oral argument is set for April 20.

Pending Petitions (CVSGs)

A very interesting development in the Supreme Court’s recent handling of the Indian law cases is the dramatic upswing in invitations to the Office of Solicitor General to opine on various cert petitions. Beginning last Term with Hogan v. Kaltag Tribal Council, the Court has issued a CVSG in five Indian law cases, far more than it ever has (though it makes perfect sense for the Court to ask the United States for advice on such petitions).

4. Brown v. Rincon Band (10-330).

The Court issued a CVSG in December 2010 in this case involving the IGRA good faith negotiation requirement after the Ninth Circuit held that California’s demand for revenue sharing violated the requirement. The invitation brief could come at any time.

5. Miccosukee Tribe v. Kraus-Anderson Construction Co. (10-717).

The Court CVSG’d this petition in January 2011. It’s a case involving federal jurisdiction over an effort by the Tribe to enforce a tribal court judgment against the construction company. Interesting in part because usually the Court pays little or no attention to tribal petitions for cert, so perhaps there is a change in the air. Expert commentary from Harold Monteau follows (Bethany Berger, I believe, made a similar argument in a comment, but I can’t find the posting):

One wonders why the Tribe did not seek registration/enforcement of its judgment in a State Court where KA has assets. The answer can only be that the Tribe’s legal counsel researched the possibility and came to the conclusion that a State Court would, under principles of comity, inquire into “due process” issues and would find that the denial of an appeal by a Tribal Council sitting as a court of appeals, knowing full well that it has a stake in the outcome, does not comport with thtat State Courts standards for due process and would not enforce the judgment. I don’t think the Supreme Court will grant cert. We are fast learning that Federal District Courts are courts of limited jurisdiction and jurisdiction can’t be premised pemised on an agreement. The Federal Court either has jurisdiction or it does not. Here, it does not. However, given the “activism” of the Court in recent years with regard to Indian cases, they could take it, uphold the Court of Appeals, but expound on issues of due process in tribal courts that don’t fit the “normal” American Jurisprudence scheme. I hope they just deny cert.

6. Osage Nation v. Irby (10-537).

Yet another CVSG, and the second CVSG of a tribal petition in the same Term (!). This case involves the Tenth Circuit’s holding that the Osage reservation has been disestablished by Congress, though it appears that the lower court applied the wrong standard in reaching the conclusion. Here is Patricia Millett’s commentary on the CVSG.

Other Pending Petitions

7. South Dakota et al. v. Yankton Sioux Tribe (10-929).

Yet another challenge from South Dakota and its political subdivisions against the Tribe relating to the alleged diminishment of the reservation. Opposition briefs due March 24.

8. Navajo Nation at al. v. EEOC (10-981).

Another cert petition in the long-running EEOC challenge to the Navajo tribal employment preference laws. The has previously denied cert in earlier incarnations of the suit, but the Ninth Circuit now has held that the challenge to the Navajo law can proceed in federal court without the Navajo Nation’s participation. EEOC’s response is not due until April 4.

Denied Petitions

9. Hogan v. Kaltag Tribal Council (09-960).

This case involved the application of ICWA in Alaska, where Indian tribes there remain in a special state of limbo. Alaska strenuously sought review of the lower court decision. After a CVSG last Term, the OSG recommended a denial of the petition, and the Court complied.

10. Thunderhorse v. Pierce (09-1353).

This is a religious freedom case brought by an American Indian prisoner, and after  SCOTUSblog championed it (so to speak) as a petition to watch, the Court issued a CVSG. The government recommended denial, despite arguing that the lower court likely got the case wrong (see our commentary here), and so it was.

11. API v. Sac and Fox Tribe (10-613).

Challenge to tribal court jurisdiction under Montana, with the nonmember entity being part of a break-in at a tribal government building, and alleged taking government and casino-related documents.

12. Gould v. Cayuga Indian Nation (10-206).

Indian tax case. Need we say more? :) Somewhat of a surprise, given that a state interest brought the petition.

Best Example of Why the Supreme Court Ranges from Irrelevant to Harmful in Indian Affairs

13. Schagticoke Tribal Nation v. Salazar (09-1433).

While it was never in doubt that the Court would deny this petition, this case truly exemplifies the problems with modern American Indian affairs. The Nation had an outstanding petition for federal recognition that had been approved by the Department of Interior until powerful political leaders used undue and corrupt influence upon the Interior Secretary (Gale Norton, no paragon of ethics) to force the reversal of the decision.


This entry was posted in Author: Matthew L.M. Fletcher, Research, Supreme Court and tagged , , , . Bookmark the permalink.

2 Responses to Supreme Court 2010 Mid-Term Update

  1. paul spruhan says:

    Matthew,
    Just a slight clarification of the Ninth Circuit’s holdings in the EEOC v. Peabody case. The Ninth Circuit reiterated its conclusion in a prior appeal that the Nation could be joined for res judicata purposes, even if EEOC could not state an affirmative claim against the Nation under Title VII. The Ninth Circuit also concluded that the Secretary of Interior could not be joined for EEOC’s damages claim against Peabody based on the United States’ sovereign immunity, but that Rule 19 did not require dismissal of EEOC’s injunction claim because Rule 14 allows the Nation and Peabody to file third-party complaints against the Secretary for injunctive relief.

  2. Pingback: Supreme Court Recap: 2010 Term | Turtle Talk

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