Well, here we go again. This is one of those “gut reaction” cases where it seems like an innocent non-Indian property owner is being subjected to liability or some other taking because of “ancient” Indian tribal property right. In virtually all other areas of law, this would be a no-brainer “deny.” There’s no split, and there never will be — unless the United States starts bringing more and more trespass actions against non-Indians on behalf of tribes (and how likely is that to happen, exactly?). It may still be denied, as it should, but the “gut reaction” of several of the Justices, coupled with a distaste toward Indian rights, might be enough to make this certworthy. Also, maybe (who knows?) it matters that the opinion comes from Judge Fletcher (Betty this time). We’ll find out Monday.
Here are the materials (from SCOTUSblog):
Title: Sharp v. United States
Issues: (1) Whether, as a matter of federal law, when owners of real property abutting navigable waters lawfully erect a shore defense structure on their own uplands, the shore defense structure constitutes a trespass against the tideland owner if subsequent erosion causes the mean high water line to contact the seaward face of that shore defense structure; (2) whether an owner of upland property is strictly liable under Section 10 of the Rivers and Harbors Appropriation Act of 1899 for erecting a shore defense structure without a federal permit when, at the time of its original construction, the shore defense structure was erected entirely out of navigable waters of the United States; and (3) whether the general disclaimer in the Washington Enabling Act that disclaims title to “all lands lying within [the state] owned or held by an Indian or Indian tribes” is sufficient to demonstrate the requisite Congressional intent to overcome the presumption that tidelands are held in trust for the State of Washington.