Mid-Term Supreme Court Indian Law Update

Mid-term Supreme Court updates are often a bit hollow, since the Court doesn’t start issuing many opinions before January, but here it is anyway. Our preview was here.

Cert Grants

No real surprises here, with the Court granting two cases — Salazar v. Patchak and Salazar v. Ramah Navajo Chapter. If past history is any indicator, there is a likelihood of a split in decisions here, given that tribal (and federal) interests are the petitions in Patchak and tribal interests are opposing federal interests in the Ramah case. It should be noted that past history always is irrelevant in a given case, but these two seem like they will come out as expected.

In Patchak, the questions involve federal immunity and standing doctrine, areas of considerable federal government concern where the government is fairly successful before the Court (more so the immunity question). There is always the concern that the Court thinks of Indian law as exceptional, and it could be open to creating an unusual exception in federal immunity because tribal interests are at play.

In Ramah, things looks a little rougher for tribal interests. True, tribal interests won a similar case in 2005 (Cherokee Nation v. Leavitt, in fact the last case tribal interests won before the Court), but the behind-the-scenes Court developments point to a likely result. There are three petitions relating to similar fact patterns arising out of three different lower courts, and the Supreme Court is holding one of those petitions (it appears — Arctic Slope Native Assn. v. Sebelius) pending the disposition of the federal government’s petition in Ramah. That’s not a good development, in that it’s exactly what the federal government asked the Court to do in its Arctic Slope response. Another petition, Salazar v. Southern Ute, is also pending.

Cert Denials

Another rough year for tribal interests in seeking Supreme Court review of lower court defeats. Most interesting is the United States v. New York petition relating to the Oneida land claims dismissal in the Second Circuit. (We at the MSU ILPS co-wrote an amicus brief supporting the petition.) The declination of the OSG’s petition continues a kind of futility for that office I wrote about last year when the government supports tribal interests before the Supreme Court. My suspicion is the Court thinks of the feds as supporting some sort of private entity (Indian tribes) that doesn’t really implicate the sovereign interests of the federal government. Given the implication of cases like Jicarilla, this is an ongoing problem for tribal interests. I’ll say it again — unless tribes make the United States pay for its negligence (to be gentle) in administering Indian affairs, then the government has no incentive to defend tribal interests.

The Court also denied two other petitions involving tribal immunity (Reed and Seneca Telephone), but there’s blood in the water and interests opposing Indian tribes can smell it. More on this later.

Pending Cert Petitions

Malaterre v. Amerind is up for decision Friday (and we predicted a possible CVSG).This is another immunity case, and a messy one at that, in that it’s not a tribe raising immunity but a Section 17 corporation. This one could be trouble for tribal interests, unless the weird corporate complexity of the case (three tribes owning the corporation and tribal court procedural issues) scares off the Court.

Shavanaux and Cavanaugh stand a decent chance of being granted given the interesting subject matter, but so far there’s no real circuit split. The Court will wade into the thicket of Indian status, tribal membership, and the Major Crimes Act one day, but probably not this Term.

A Final Note on Tribal Petitions

I wrote in 2009 (what seems like an eternity) that tribal cert petitions tend to go nowhere unless the federal government is a co-petitioner or in the even more unusual circumstances of the federal government acquiescing as the respondent.

Seriously, tribal leaders and in-house counsel — read Factbound and Splitless. Nothing’s changed since then — your petition will be denied. Don’t waste your money.

Here is a list (links from the excellent Tribal Supreme Court Project website) of tribal petitions denied this Term and for the last few years:

2011 Term

Evans v. Wapato Heritage (No. 11-215)

Gila River Indian Community v. Lyon (11-80)

Lomas v. Hedgpeth (11-424)

Oneida Indian Nation v. County of Oneida (10-1420)

Omaha Tribe of Nebraska v. Storevisions (11-508)

Navajo Nation v. Equal Employment Opportunity Commission (Nos. 10-981, 10-986, 10-1080)

Ysleta del Sur Pueblo v. Texas (11-553)

2010 Term

Fort Peck Housing Authority v. U.S. Department of Housing and Urban Development (10-195)

Maybee v. Idaho (09-1471)