2018-19 Term

Supreme Court Cases Related to Indian Law

Three petitions for certiorari were granted in Indian law-related cases.

Petition for certiorari were denied in twenty-four Indian law-related cases.

Cert Granted

Synopsis: Wholesale fuel importer owned by a member of the Yakama Nation, which was incorporated under Yakama law and designated by the Yakama Nation as its agent to obtain fuel for members of the Tribe, sought review of the decision of the Washington State Department of Licensing, which concluded that the Tribe's right under treaty to travel on highways did not preempt state fuel taxes and assessed importer $3.6 million in taxes, penalties, and licensing fees. The Superior Court, Yakima County, No. 14-2-03851-7, Michael G. McCarthy, J., reversed. The Department appealed. The Supreme Court of Washington, Johnson, J., 188 Wash.2d 55, 392 P.3d 1014, affirmed. Certiorari was granted.

History: Petition was filed on 6/14/17. Petition was granted on 6/25/18. Decided 3/19/19.

Holding: The Supreme Court, Justice Breyer, held that: 1) Washington's fuel tax burdened the treaty right of the Yakama Nation to travel upon all public highways in common with citizens of the United States, and 2) Washington’s application of its fuel tax on importer was preempted by treaty’s reservation to the Yakama Nation of the right to travel upon all public highways. Affirmed.

Related News Stories: Public road use won’t open tribal business to state tax liability (Courthouse News) 3/19/19. Supreme Court's fuel tax ruling will be a big deal for WA tribes (Crosscut.) 2/25/19, Supreme Court on a case of treaty rights v. state taxation (High Country News) 2/19/19, U.S. Supreme Court hears Yakama Nation tax case, as Justices interpret 1855 treaty (NW News Network) 10/30/18, U.S. Supreme Court will hear case between Yakama tribal member and state Department of Licensing on gas tax (Yakima Herald) 9/29/18, Indian Country awaits busy season at Supreme Court amid big change (Indianz) 8/15/18, Supreme Court delivers bad news to tribes as term draws to a close (Indianz) 6/25/18, High Court takes up Native American tax case (Courthouse News Service) 6/25/18, Why a tribal treaty rights case in Washington will likely end up in front of the U.S. Supreme Court (Inlander) 5/24/18

Question Presented: Whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.

History: Petition was filed on 10/5/17. Petition was granted on 6/28/18. Decided 5/20/19.

Related News Stories: Supreme Court affirms hunting rights for Crow Tribe under 1868 treaty. (ABC News) 5/20/29. Supreme Court backs off-reservation treaty rights of Crow Tribe. (Indianz) 5/20/19. Gorsuch Joins Sotomayor’s Majority (National Review) 5/20/19. Opinion in Native American Hunting Case Wyoming hunting case could have broad implications (Gillette News Record) 2/18/19, Can congress void a tribal treaty without telling anyone? (The Atlantic) 1/13/19, Supreme Court takes up another Indian law case with few on the horizon (Indianz) 1/8/19, Supreme Court schedules hearing in third Indian law case (Indianz) 12/3/18, Tribal hunting rights case before U.S. Supreme Court (Indianz) 9/25/18, U.S. Supreme Court to hear Sheridan County poaching case (Jackson Hole News & Guide) 9/1/18. Indian Country awaits buy season at Supreme Court amid big change (Indianz) 8/15/18, Wild ride continues as Supreme Court agrees to hear another treaty case (Indianz) 6/28/18, Tribes see continued challenges as more cases head to highest court (Indianz) 2/21/18

Questions Presented: Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an “Indian reservation” today under 18 U.S.C. § 1151(a).

History: Petition was filed on 2/6/18. Petition was granted on 5/21/18. Case was restored to the calendar for reargument in the 2019-2020 term.

Ruling below: Murphy v. Royal, 866 F.3d 1164. The Court of Appeals, Matheson, Circuit Judge, held that: 1) prisoner's claim was governed by clearly established federal law; 2) Oklahoma state appellate court rendered merits decision on prisoner's claim that state court lacked jurisdiction because crime occurred on Indian land; 3) Oklahoma state appellate court's decision was contrary to clearly established federal law; and 4 )Congress did not disestablish Indian reservation, and thus Oklahoma state court lacked jurisdiction to prosecute defendant for murder that occurred on reservation. Reversed and remanded

Related News Stories: Attorneys respond to Supreme Court's questions about Murphy case (The Journal Record) 12/28/18, Casinos on every corner? No! How Carpenter v. Murphy affects tribal sovereignty (Indian Country Today) 12/20/18, On fear, parades of horribles, and emotionally potent oversimplifications in tribal rights litigation (Turtle Talk) 12/18/1, Could half of Oklahoma end up under Native American jurisidiction? (VOA) 12/10/18, Tribal officials discuss ramifications of Murphy case (Tahlequah Daily Press) 11/30/18, Supreme Court decision could restore millions of acres to Muscogee Creek Nation (The Norman Transcript) 11/23/18, Supreme Court opens new term with major Indian law cases on docket (Indianz) 10/1/18, Muscogee Nation clashes with state in reservation boundary dispute (Indianz) 5/21/18, Trump administration sides with industry in reservation boundary case (Indianz) 4/3/18, Appeals court won't revist historic decision in Muscogee Nation boundary case (Indianz) 11/9/17.

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Cert Pending

Questions Presented: Whether the Eighth Circuit erred in holding, in conflict with decisions of this Court and three other courts of appeals, that the possibility of filing a separate mandamus action was in and of itself “sufficient” to provide an “adequate opportunity” requiring Younger abstention, where plaintiffs had no opportunity to challenge the constitutionality of the preliminary hearing procedure in the course of the state’s abuse and neglect proceedings? Whether the court of appeals erred in holding, in conflict with three courts of appeals, that the “extraordinary circumstances” exception to Younger abstention applies only to flagrantly and patently unconstitutional statutes, but not to flagrantly and patently unconstitutional policies, and in concluding that separating children from their parents for sixty days with no notice or opportunity to be heard inflicted no irreparable harm?

History: Petition was filed on 3/4/19.

Ruling below: Oglala Sioux Tribe v. Fleming. 904 F.3d 603.The Court of Appeals, Colloton, Circuit Judge, held that: 1) Younger abstention was warranted, and 2) exception to Younger abstention for patently unconstitutional actions did not apply. Vacated and remanded.

Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe of Chippewa Indians

Briefs and Pleadings

Docket No. 18-1218

Question Presented: Whether the Bankruptcy Code abrogates the sovereign immunity of Indian tribes.

History: Petition was filed on 3/19/19.

Ruling below: In re Greektown Holdings, LLC. 917 F.3d 451. The Court of Appeals, Clay, Circuit Judge, held that: 1) Congress did not unequivocally express intent to abrogate Indian tribe's sovereign immunity from cause of action by litigation trustee in strong-arm capacity to set aside allegedly fraudulent prepetition transfers made by Chapter 11 debtor to tribe; 2) while tribal sovereign immunity could be waived by litigation conduct, it could not be waived by the litigation conduct, not of tribe, but of tribe’s alleged alter ego or agent; and 3) litigation conduct of filing bankruptcy petition does not waive tribal sovereign immunity as to a separate, adversarial fraudulent transfer avoidance claim. Affirmed.

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Cert Denied

Questions Presented: Whether an Indian tribe is immune from civil liability for tort claims asserted by non-members.

History: Petition was filed on 2/16/18. Petition was denied on 6/24/19.

Ruling below: Wilkes and Russell v. PCI Gaming Authority, 2017 WL 4385738. The Supreme Court, Murdock, J., held that: 1) it would decline to decide whether casino was properly located on land considered Indian country; and 2) it would decline to decide whether dispute was a matter of internal or tribal relations or, alternatively, was a dispute specially consigned to the regulatory authority of a tribe by Congress. Affirmed.

Related News Stories: Supreme Court opens new term with major Indian law cases on docket (Indianz) 10/1/18, Supreme Court takes up Indian law petitions amid major controversy (Indianz) 9/24/18

Questions Presented: Whether the “separate sovereign” concept actually exists any longer where Congress’s plenary power over Indian tribes and the general erosion of any real tribal sovereignty is amplified by the Northern Cheyenne Tribe’s Constitution in this case such that Petitioner’s prosecutions in both tribal and federal court violate the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution.

History: Petition was filed on 11/14/17. Petition was denied on 6/24/19.

Ruling below: United States v. Bearcomesout, 696 Fed.Appx. 241.

Related News Stories: Supreme Court delays action for ninth time in Indian Country violence case (Indianz) 6/5/18

Teck Metals LTD v. The Confederated Tribes of the Colville Reservation

Briefs and Pleadings

Docket No. 18-1160

Questions Presented: 1. Whether the Ninth Circuit, in conflict with Morrison v. National Australia Bank Ltd., 561 U.S. 247 (2010), and RJR Nabisco, Inc. v. European Community, 136 S. Ct. 2090 (2016), correctly concluded that holding Teck liable for its discharges in Canada was not an impermissible extraterritorial application of CERCLA. 2. Whether the Ninth Circuit, in conflict with this Court’s decision in Walden v. Fiore, 571 U.S. 277 (2014), and the Second, Fifth, and Seventh Circuits, correctly held that a State may exercise specific personal jurisdiction over a defendant because the defendant knew its conduct would have in-state effects, where the defendant’s relevant conduct occurred elsewhere. 3. Whether the Ninth Circuit, in conflict with the First Circuit and in tension with the opinions of this Court and several other circuits, correctly held that a defendant can be an “arranger” under CERCLA even if the defendant did not arrange for anyone else to dispose of or treat the waste.

History: Petition was filed on 3/4/19. Petition was denied on 6/10/19.

Ruling below: Pakootas v. Teck Cominco Metals, LTD. 905 F.3d 565. The Court of Appeals, Gould, Circuit Judge, held that: 1) District Court did not abuse its discretion by directing entry of judgment on company's liability under CERCLA for response costs; 2) company “expressly aimed” waste it dumped into River at State of Washington, thereby establishing requisite effects in Washington for exercise of specific personal jurisdiction; 3) tribes were entitled to recover investigation costs, as recoverable costs of “removal”; 4) tribes were entitled to recover reasonable attorney fees for prevailing in their action; 5) company was not entitled to divisibility defense. Affirmed.

Questions Presented: Does sovereign immunity bar the federal courts’ consideration of a declaratory judgment action to determine whether Respondent Tribes can exercise regulatory/taxing authority over real property owned in fee by Petitioners non-Indians, pursuant to allotments that were authorized by the Tribes’ treaty with the United States?

History: Petition was filed on 1/23/19. Petition was denied on 6/10/19.

Ruling below: Mitchell v. Tulalip Tribes of Washington, 740 Fed.Appx. 600

Questions Presented: 1. Whether the Ninth Circuit erred in holding that the Yakama Treaty must include “express exemptive language” to create an exemption from a federal tax or fee. 2. Whether the Ninth Circuit erred in holding that the federal tobacco excise tax, 26 U.S.C. § 5701-5703, and the Fair and Equitable Tobacco Reform Act (“FETRA”), 7 U.S.C. § 518-519, apply to the Yakama Indians even though (1) the Yakama Treaty creates a right to travel in order to protect the Yakama Indians’ ability to trade and (2) these taxes and fees are triggered by the transport of goods – rather than by sale or manufacture.

History: Petition was filed on 1/18/19. Petition was denied on 6/10/19.

Ruling below: United States v. King Mountain Tobacco Company, Inc. 899 F.3d 954. In matters of first impression, the Court of Appeals, McKeown, Circuit Judge, held that: 1) the General Allotment Act did not provide manufacturer an exemption from imposition of the federal excise tax, and 2) provisions of 1855 Yakama Treaty did not contain express exemptive language sufficient to relieve corporation of its liability for federal excise tax. Affirmed.

Question Presented: Whether the Federal Circuit erred in this case, as it did in Acorda Therapeutics, Inc. v. Roxanne Laboratories, Inc., 903 F.3d 1310 (Fed. Cir. 2018), in holding that objective indicia of non-obviousness may be partially or entirely discounted where the development of the invention was allegedly "blocked" by the existence of a prior patent, and, if so, further erred by making an implicit finding that an invention was ''blocked," without requiring evidence of or making a finding of actual blocking, and in the face of evidence to the contrary.

History: Petition was filed on 4/10/19. Petition was denied on 6/3/19.

Question Presented: Whether the “former reservation” exception permitting lands acquired by the United States in trust for an Oklahoma Tribe after the effective date of the Indian Gaming Regulatory Act of 1988 to be devoted to gaming purposes, is applicable to lands not subject to Tribal jurisdiction prior to the acquisition.

History: Petition was filed on 3/14/19. Petition was denied on 5/29/19.

Ruling below: Comanche Nation of Oklahoma v. Zinke. 754 F. Appx. 768. The Court of Appeals, Carlos F. Lucero, Circuit Judge, held that: 1) nation did not have substantial likelihood of success on merits of challenge to regulations governing trust acquisitions, and 2) nation did not have substantial likelihood of success on merits of NEPA claim. Affirmed.

Question Presented: The 2014 Tribal General Welfare Exclusion Act states that, for income tax purposes, “[g]ross income does not include the value of any Indian general welfare benefit.” The question presented is whether contrary to that plain command, gross income includes “Indian general welfare benefits” when those benefits are derived from gaming revenue pursuant to the 1988 Indian Gaming Regulatory Act.

History: Petition was filed on 1/7/19. Petition was denied on 5/28/19.

Ruling below: United States v. Jim, 891 F.3d 1242. The Court of Appeals, Tjoflat, Circuit Judge, held that: 1) Indian general welfare benefits exemption did not apply to distributions; 2) distributions did not derive from tribal land, and, thus, were not exempt from federal taxation on such basis; 3) District Court did not abuse its discretion in denying tribe's motion to amend judgment entered against it. Affirmed

Questions Presented: Whether treaties with Indian tribes must be construed consistent with that tribe’s present-sense understanding of the treaty. Whether the Miccosukee Tribe’s long-standing method of compensation for use of Tribal member lands and distributing revenue from land to its members can be considered a “mere formalism” to avoid inclusion and taxation as income to the members when the Tribe’s chosen method of compensation is soundly in line with federal law and policy. Whether the Assistant Secretary of the Interior through its designated representative can interpret, waive, modify or exempt payments.

History: Petition was filed on 1/7/19. Petition was denied on 5/28/19.

Ruling below: United States v. Jim, 891 F.3d 1242. The Court of Appeals, Tjoflat, Circuit Judge, held that: 1) Indian general welfare benefits exemption did not apply to distributions; 2) distributions did not derive from tribal land, and, thus, were not exempt from federal taxation on such basis; 3) District Court did not abuse its discretion in denying tribe's motion to amend judgment entered against it. Affirmed.

Question Presented: Whether claims for declaratory and damages relief to redress past injuries under Title VI of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000d–2000d-7, are moot when no prospective relief is available or sought.

History: Petition was filed on 1/14/19. Petition was denied on 5/28/19.

Ruling below: Carter v. Tahsuda. 743 F. Appx. 823. The Court of Appeals held that action was moot. Vacated and remanded with instructions.

Questions Presented: Should this Court reconsider Chevron? Does the National Labor Relations Act apply to Indian tribes? Does the employee-to-employee solicitation rule in Republic Aviation empower employees to solicit customers in business “guest areas” like restrooms and restaurants?

History: Petition was filed on 1/4/19. Petition was denied on 5/20/19.

Ruling below: Pauma v. National Labor Relations Board, 888 F.3d 1066. Union could not raise collateral estoppel defense affirmatively waived by NLRB; NLRB’s determination that tribal employer was “employer” within meaning of the NLRA was entitled to Chevron deference; federal Indian law did not preclude NLRB’s determination that tribal employer was “employer” within meaning of the NLRA; employer sufficiently exhausted its claim that it did not violate the NLRA; substantial evidence supported NLRB’s determination that tribal employer committed unfair labor practice by trying to stop employees’ union literature distribution to customers outside casino’s front entrance; and substantial evidence supported NLRB’s determination that tribal employer committed unfair labor practice by disciplining employee for distributing union literature near casino’s time clock. NLRB’s petition granted and employer’s petition denied.

Question Presented: The question presented here is whether the NHPA imposes a continuing obligation upon federal agencies to engage in consultation under Section 106 when an agency maintains supervision of an ongoing project, and has the opportunity to require changes to mitigate adverse impacts after the initial approval.

History: Petition was filed on 3/21/19. Petition was denied on 5/20/19.

Ruling below: Havasupai Tribe v. Provencio. 906 F.3d 1155. The Court of Appeals, Block, District Judge, sitting by designation, held that: 1) plaintiffs had Article III standing to assert claims under National Environmental Policy Act (NEPA) and National Historic Preservation Act (NHPA); 2) Forest Service's conclusion that mining company had valid existing rights to mine uranium ore on public lands that were established prior to mineral withdrawal was “final agency decision”; 3) Forest Service's mineral report was not major federal action requiring preparation of environmental impact statement (EIS); 4) Forest Service's mineral report was not “undertaking” that triggered NHPA's consultation process; 5) groups' claim that Forest Service improperly determined that mining company had valid existing rights to mine uranium ore on public lands fell outside zone of interests protected by General Mining Act; and 6) groups' claim that Forest Service improperly determined that company had valid existing rights to mine uranium ore on public lands fell within zone of interests protected by Federal Land Policy and Management Act (FLPMA). Affirmed in part, vacated in part, and remanded.

Related News: Court gives environmentalists new change to fight uranium mine (Cronkite News) 10/28/18

Questions Presented: Whether the Tenth Circuit panel violated the current jurisprudence of this Court and the Congressional policy underlying IGRA by precluding the Nation from exercising its sovereign authority to permit a patron’s tort claim against the Nation and its gaming facility to be brought in state court without express congressional permission

History: Petition was filed on 1/10/19. Petition was denied on 4/22/19.

Ruling below: Navajo Nation v. Dalley, 896 F.3d 1196. The Court of Appeals, Holmes, Circuit Judge, held that: 1) Court had subject matter jurisdiction; 2) IGRA provisions did not authorize tribe to allocate jurisdiction to state courts for visitors' tort claim; 3) “catch-all” provision in IGRA did not authorize tribe to allocate jurisdiction to state courts for visitors' tort claim; and 4) statutory-construction canon against surplusage construction of statutes was an independent and distinct ground for rejecting expansive reading of “catch-all” provision in IGRA. Reversed and Remanded.

Related News Stories: Supreme Court won't hear dispute over slip and fall at Navajo Nation casino (Indianz) 4/23/19

Questions Presented: Does an Indian Tribe have authority under the second exception of Montana v. United States, 450 U.S. 544 (1981), to forfeit automobiles owned by non Native Americans for violation of tribal drug laws while on tribal land? If so, does the Tribe have authority to seize a motor vehicle off reservation if it has probable cause to believe that the automobile previously contained illegal drugs while on tribal lands?

History: Petition was filed on 2/14/19. Petition was denied on 4/22/19.

Ruling below: Wilson v. Horton's Towing, 906 F.3d 773. The Court of Appeals, Pregerson, District Judge, sitting by designation, held that: 1) owner was required to exhaust his remedies before tribal court before filing suit against company in federal court, and 2) officer was entitled under Westfall Act to immunity from truck owner's conversion claim. Affirmed in part, vacated in part, and remanded.

Questions Presented: Whether inter partes review before the Patent Trial and Appeal Board is the type of proceeding in which tribal sovereign immunity may be asserted.

History: Petition was filed on 12/20/18. Petition was denied on 4/15/19.

Ruling below: Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals Inc., 896 F.3d 1322. The Court of Appeals, Moore, Circuit Judge, held that tribal sovereign immunity could not be asserted in inter partes review proceedings. Affirmed.

Related News Stories: St. Regis Mohawk Tribe appeals loss in patent case to Supreme Court (Indianz) 1/16/19

Harvey, et al., v. Ute Indian Tribe of the Uintah and Ouray Reservation, et al.

Briefs and Pleadings

Docket No. 17-1301

Questions Presented: 1. Whether the tribal remedies exhaustion doctrine, which requires federal courts to stay cases challenging tribal jurisdiction until the parties have exhausted parallel tribal court proceedings, applies to state courts as well. 2. Whether the tribal remedies exhaustion doctrine requires that nontribal courts yield to tribal courts when the parties have not invoked the tribal court’s jurisdiction.

History: Petition was filed on 3/7/18. Petition was denied on 1/7/19.

Ruling below: Rocks Off Inc. v. Ute Indian Tribe of the Uintah and Ouray Reservation, 2017 WL 5166885. Supreme Court of Utah.The Supreme Court, Durham, J., held that: 1) tribe did not waive sovereign immunity; 2) tribal officials, in their official capacities, were not entitled to sovereign immunity on claims to enjoin actions that exceeded tribe's jurisdiction; 3) tribal officials were not protected by sovereign immunity when sued for damages in their individual capacities; 4) tribe was not a necessary party to businessman's action against tribal officials; 5) tribal exhaustion doctrine prevented state courts from reviewing businessman's claims against tribal officials; 6) businessman was not entitled to grant of untimely motion to file supplemental pleadings; 7) businessman failed to state claims against companies owned by tribal officials; 8) businessman failed to state claims against oil and gas companies; 9) there is no civil cause of action in Utah for extortion; and 10) state constitutional provision prohibiting “the exchange of black lists” was not self-executing. Affirmed in part, vacated in part, and remanded.

Related News: Supreme Court delivers bad news to tribes as term draws to a close (Indianz) 6/25/18

Questions Presented: 1. Subject to certain exceptions, the Indian Gaming Regulatory Act (“IGRA,” 25 U.S.C. §§ 2701 et seq.) expressly prohibits casino gaming on land acquired by the Secretary of the Interior into trust for Indian tribes after 1988 (so-called “off-reservation” land). 25 U.S.C. § 2719(a). Under the exception applicable here, a tribe may conduct gaming on off-reservation land if, among other requirements, the Secretary determines that gaming “would be in the best interest of the Indian tribe and its members,” and “would not be detrimental to the surrounding community. . . .” 25 U.S.C. § 2719(b)(1)(A). This case presents the question whether the Secretary may conclude that a casino “would not be detrimental to the surrounding community” despite uncontroverted evidence the casino will have unmitigated detrimental impacts to the community. 2. The Indian Reorganization Act of 1934 (“IRA,” 25 U.S.C. §§ 5101 et seq.) authorizes the Secretary to take land into trust “for the purpose of providing land for Indians.” 25 U.S.C. § 5108. As relevant here, the IRA defines “Indian” to include “all persons of Indian descent who are members of any recognized Indian tribe now under Federal jurisdiction.” Ibid.

History: Petition was filed on 7/9/18. Petition was denied on 1/7/19.

Ruling below: Stand Up For California! v. United States Department of the Interior, 879 F.3d 1177. The Court of Appeals, Tatel, Circuit Judge, held that:

1) Indian tribe constituted a “recognized Indian tribe” at time that Indian Reorganization Act (IRA) was passed; 2) substantial evidence supported Department's conclusion that Indian tribe, as it currently existed, could trace its roots to Indians who lived on tribe's reservation at time that IRA was passed;

3) court would defer to Department's reasonable interpretation of provision of Indian Gaming Regulatory Act (IGRA) that required an Indian casino to not be a detriment to the surrounding community; 4) substantial evidence supported Department's determination that permitting Indian tribe to operate a casino on its newly acquired lands would not be detrimental to the surrounding community; and 5) relevant date for Department's analysis of whether proposed casino would comply with Clean Air Act (CAA) requirements was when the Department initially made its determination, rather than when it reissued its determination on remand. Affirmed.

Questions Presented: Whether the court of appeals had jurisdiction over the appeal filed by a nonparty when the nonparty did not participate in any capacity in the district court proceedings. Whether the Tenth Circuit improperly invoked the Indian canon of construction to deprive surface estate owners who are members or successors-ininterest to Indian tribe members of important property rights by overriding clear regulatory language for the express purpose of favoring the economic interests of an Indian tribe without examining congressional intent.

History: Petition was filed on 3/2/18. Petition was denied on 1/7/19.

Ruling below: United States v. Osage Wind, LLC. 871 F.3d 1078. United States Court of Appeals, Tenth Circuit.

The Court of Appeals, Ebel, Circuit Judge, held that: 1) Indian tribe was entitled to appeal district court's grant of summary judgment to wind company without having intervened in district court; 2) tribe's claim was not precluded under doctrine of res judicata; 3) de minimis exception in regulation requiring mineral leases on indian land did not apply to wind company's excavation; 4) definition of “mining” in regulation requiring mineral leases on Indian land is not limited to commercial extraction of minerals, but also includes acting upon the minerals to exploit the minerals themselves; and 5) wind company's excavation constituted mineral development. Reversed and remanded.

Related News Stories: Supreme Court won't review wind farm case (Energy Central News) 1/9/19, Trump administration asks Supreme Court to avoid Osage wind farm case (National Wind Watch) 12/9/18, Tenth Circuit takes expansive view of the definition of the term "mining", holding wind farm project needs permit prior to commencement of excavation in tribal mineral estate (Real Estate, Land Use & Environmental Law Blog) 3/1/18. Court holds project construction constitutes 'mining' on tribal lands (JD Supra) 9/27/17. Appeals court reverses judge's decision allowing wind developers to dig on Osage land (Tulsa World) 9/18/17.

Questions Presented: The decision below ruled that New York’s promise to the Seneca Nation of Indians to refrain from assessing taxes “for any purpose whatever, upon any Indian reservation in this state” as memorialized in a treaty and statute should be interpreted to allow New York to assess and collect any taxes it desires within the Seneca Nation of Indians so long as New York claims the taxes will be paid by non-Indians. Does this interpretation directly conflict with this Court’s decision in The New York Indians, 72 U.S. 761 (1866), in which this Court specifically prohibited New York from assessing taxes within the Seneca Nation of Indians, even those to be paid by non-Indians, because that mere assessment violated the ancient rights of the Seneca Nation of Indians as memorialized in treaties and a statute? Does this interpretation violate this Court’s canons of construction governing the interpretation of treaties executed and statutes enacted for the benefit of Indians?

History: Petition for certiorari was filed on 9/4/2018. petition was denied on 10/29/18.

Ruling below: White v. Schneiderman, 31 N.Y.3d 543. The Court of Appeals, Garcia, J., held that: 1) prepayment scheme did not constitute a tax, and thus did not violate federal law, and 2) since prepayment scheme was not a tax, it did not violate Buffalo Creek Treaty of 1842, or state statute derived therefrom.

Affirmed.

Related News Stories: NY top court: Tax on Indian-reservation cigarettes is legal (Newsday) 6/7/18.

Question Presented: Whether the Court of Appeals erred in reversing the District Court’s confirmation and enforcement of the Arbitrator’s Award pursuant to the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq.

History: Petition was filed on 5/30/18. Petition for certiorari was denied on 10/15/18.

Ruling below: Citizen Potawatomi Nation v. State of Oklahoma, 881 F.3d 1226. The Court of Appeals, Murphy, Circuit Judge, held that: 1) de novo review provision of binding arbitration clause in tribal-state gaming compact was legally invalid, and 2) district court erred in failing to sever binding arbitration clause from tribal-state gaming compact. Remanded with instructions to vacate arbitration award.

Related News Stories: Citizen Potawatomi Nation hits end of the line at Supreme Court (Indianz) 10/15/18, Supreme Court opens new term with major Indian law cases on docket (Indianz) 10/1/18, Supreme Court takes up Indian law petitions amid major controversy (Indianz) 9/24/18

Questions Presented: The question presented is whether the Ninth Circuit—in conflict with the decisions of this Court and other courts—properly held the Treaty of Olympia confers this expansive “fishing” right.

History: Petition was filed on 5/21/18.

Ruling below: Makah Indian Tribe v. Quileute Indian Tribe, 873 F.3d 1157. The Court of Appeals, McKeown, Circuit Judge, held that:

1) district court did not clearly err in determining that word “fish,” as used in Treaty, encompassed sea mammals;

2) tribes were not required to provide evidence of specific locations that they regularly and customarily hunted whales or seals; and

3) district court incorrectly drew longitudinal boundaries of tribes' U & A fishing grounds.

Affirmed in part, reversed in part, and remanded.

Related News Stories: Supreme Court opens new term with major Indian law cases on docket (Indianz) 10/1/18, Supreme Court takes up Indian law petitions amid major controversy (Indianz) 9/24/18

County of Amador, CA v. Department of the Interior, et al.

Briefs and Pleadings

Docket No. 17-1432

Questions Presented: The questions presented are: 1. Whether Congress intended the phrase “under Federal jurisdiction,” as used in the 1934 Act, to encompass a tribe that, as of June 18, 1934, had no land held on its behalf by the federal government,services or benefits from the federal government; did not have members enrolled with the Indian Office; and which was not invited to organize under the IRA in 1934 by the Secretary like other recognized tribes in Amador County; but for whom the federal government had unsuccessfully attempted to purchase land pursuant to a generic appropriation authorizing the purchase of land for unspecified “landless Indians” in California? 2. Whether the Secretary’s authority to take land into trust for “members of any recognized Indian tribe now under Federal jurisdiction” requires that the tribe have been “recognized” in 1934, in addition to being “under Federal jurisdiction” at that time, or whether such “recognition” can come decades after the statute’s enactment? 3. Whether the Secretary, having explicitly concluded that in enacting the Indian Gaming Regulatory Act Congress intended that Indian tribes “restored to Federal recognition” refers only to tribes that are “restored” pursuant to (a) congressional legislation, (b) a judgment or settlement agreement in a federal court case to which the United States is a party, or (c) “through the administrative Federal Acknowledgment Process under [25 C.F.R. § 83.8],” and having embodied that conclusion in a formal regulation, 25 C.F.R. § 292.10, can then act contrary to Congress’s intention by “grandfathering in” a preliminary (i.e., non-final) agency action treating Indians who do not meet the regulatory definition as “restored”?

History: Petition was filed on 4/11/18.

Ruling below: County of Amador v. United States Department of the Interior, 872 F.3d 1012. Court of Appeals for the Ninth Circuit. The Court of Appeals, Susan P. Graber, Circuit Judge, held that: 1) as matter of first impression, phrase “recognized Indian tribe now under Federal jurisdiction,” in IRA includes all tribes that are “recognized” at the time of the relevant decision and that were “under Federal jurisdiction” at the time the IRA was passed; 2) DOI's interpretation of phrase “under Federal Jurisdiction” in provision of Indian Reorganization Act (IRA) defining an “Indian” entitled to IRA's benefits was best interpretation; 3) DOI's determination that tribe was “under Federal jurisdiction” when IRA was passed was not arbitrary and capricious; and 4) grandfathering provision in DOI regulation implementing Indian Gaming Regulatory Act's (IGRA) “restored tribe” exception was in accordance with IGRA. Affirmed.

Related News Stories: Supreme Court opens new term with major Indian law cases on docket (Indianz) 10/1/18, Supreme Court takes up Indian law petitions amid major controversy (Indianz) 9/24/18

Lummi Tribe of the Lummi Reservation, et al., v. United States

Briefs and Pleadings

Docket No. 17-1419

Questions Presented: Does 28 U.S.C. § 1491 grant the court of federal claims jurisdiction over an action to recover grant-inaid funds unlawfully recouped by the United States or is the action one for specific relief which must be brought under the Administrative Procedure Act, 5 U.S.C. § 702? Does the court of federal claims have jurisdiction to enter a judgment on an illegal exaction claim when the United States had previously awarded money to a recipient under a grant-in-aid statute and then unlawfully recouped the funds? Where a grant-in-aid statute mandates that the United States pay grant funds to a plaintiff, does the court of federal claims have jurisdiction to enter a money judgment for the failure to pay the grant funds even if there are conditions on the use of the grant funds after they are awarded?

History: Petition was filed on 4/5/18.

Ruling below: : Lummi Tribe of the Lummi Reservation, Washington v. United States, 870 F.3d 1313. The Court of Appeals, O’Malley, Circuit Judge, held that: [1] NAHASDA was not money-mandating statute, and [2] HUD’s decision not to grant block grants to Tribe did not constitute illegal exaction. Vacated and dismissed.

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Fort Peck Housing Authority, et al., v. Department of Housing and Urban Development, et al.

Briefs and Pleadings

Docket No. 17-1353

Question Presented: Whether an action for the restoration of grant in aid funds illegally recouped by the United States constitutes a suit for specific relief such that the United States’ sovereign immunity is waived pursuant to the Administrative Procedure Act, 5 U.S.C. § 702, or whether it is a suit for money damages, barring relief in the federal district courts.

History: Petition was filed on 3/22/18.

Ruling below: Modoc Lassen Indian Housing Authority v. United States Department of Housing and Urban Development, 878 F.3d 889. On petition for rehearing, the Court of Appeals, Moritz, Circuit Judge, held that: 1) HUD was not required under NAHASDA to conduct administrative hearings prior to attempting to recapture alleged overpayments; 2) HUD finding that tribes incorrectly received NAHASDA payments did not trigger provision requiring hearings before finding improper expenditures; 3) even assuming incorrect receipt of NAHASDA payments was covered under provision governing improper expenditures, incorrect receipt did not constitute substantial noncompliance; 4) HUD lacked the authority to recapture alleged overpayments via administrative offset; and 5) sovereign immunity precluded an award of money damages payable from NAHASDA grant funds carried over from prior years and funds that would be appropriated in future years. Affirmed in part, reversed in part, and remanded. Matheson, J., filed an opinion concurring in part and dissenting in part. Bacharach, J., filed an opinion concurring in part and dissenting in part.

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