The Supreme Court’s 2010 Term — for tribal interests — was a flurry of activity, but with little to show for it. In Shakespeare’s words, full of sound and fury but signifying nothing (or almost nothing). Our two previews are here and here. Our previous mid-Term updates are here and here.
The underlying theme of the Term seems to be the aggressive campaign by the Department of Justice to undermine the tribal-federal trust relationship. Of note, the once-prominent and now-discredited Lone Wolf period where the Supreme Court granted free reign to Congress and the Executive branch appears to be recurring, with the Executive branch now enjoying virtually unlimited authority to handle tribal trust property with little or no consultation. Also, for the sixth consecutive Term, and for every Term except 1996, the Court granted zero tribal petitions.
The Court ruled 7-1 against the Nation (with Justice Kagan recused). Only Justice Ginsburg dissented. The Court then GVR’d a similar case, United States v. Eastern Shawnee. Within a few weeks of the outcome, the government began moving for dismissal of claims around the country, the first apparently being the Goodeagle case.
This is the big surprise of the Term (and it appears the closest thing to a “win” for tribal interests), 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.
Easily the biggest case for tribal interests the Court granted this Term, and the biggest disappointment. The Court ruled 7-1 (with Justice Kagain recused, and Justice Sotomayor dissenting) that common law fiduciary trust law doesn’t apply to Congressionally-created trusts. The outcome here means that It remains to be seen whether other trusts would survive the ruling. The case attracted attention from a national Court observer (Andrew Cohen), who harshly criticized the decision (here).
The oral argument transcript is here.
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 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). The OSG recommended denial in each case, and the Court followed the SG’s lead in each case.
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 recommended denial, and yesterday the Court declined review.
The Court’s decision to let the Ninth Circuit’s decision below is a watershed moment in Indian gaming. As the market for Indian gaming becomes saturated with both Indian and non-Indian gaming operations, the revenue sharing provisions in dozens of tribal-state gaming compacts may be affected.
5. Miccosukee Tribe v. Kraus-Anderson Construction Co. (10-717).
The Court CVSG’d this petition, and the OSG recommended denial. The Court denied cert last week. It was 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 the CVSG is interesting. Likely, the Court sought the OSG’s advice because the respondent sought review as well (for reasons that aren’t entirely clear).
6. Osage Nation v. Irby (10-537).
Yet another CVSG, and the second CVSG of a tribal petition in the same Term (!). Unfortunately, for the Osages, the OSG recommended denial. 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. The Court denied cert in this case yesterday. Here is Patricia Millett’s commentary on the CVSG.
Our suspicion is that the SG was engaging in a kind of “defensive denial” game the Justices engage in. Justice Kagan was recused from the case, leaving only three Justices that are at least reliably persuadable (that’s a word?). Another time, perhaps.
The Court denied cert of these petitions last week. It shouldn’t be surprising, given that South Dakota et al.’s complaint was that the DOI took land into trust for a tribe within its own reservation. Mountain out of a molehill….
8. 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.
9. 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.
10. 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.
11. 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.
12. 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.
Pending Petitions We’ll Watch for in the “Long Conference”
13. 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.
Twin petitions challenging the Second Circuit’s decision to strike down all of the Oneida land claims, very notable for the United States’ decision to file a petition.
15. BMG v. Chukchansi Gold Casino (No. 10-1389)
Another sovereign immunity case, possibly worth watching because of the prominence of the petitioner, but probably going nowhere.
16. Reed v. Gutierrez (No. 10-1390)
Yet another immunity case. Definitely going nowhere.