Tuesday, February 2, 2010

Supreme Court Update Available


The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and is staffed by the National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF). The Project was formed in 2001 in response to a series of U.S. Supreme Court cases that negatively affected tribal sovereignty. The purpose of the Project is to promote greater coordination and to improve strategy on litigation that may affect the rights of all Indian tribes. We encourage Indian tribes and their attorneys to contact the Project in our effort to coordinate resources, develop strategy and prepare briefs, especially at the time of the petition for a writ of certiorari, prior to the Supreme Court accepting a case for review. You can find copies of briefs and opinions on the major cases we track on the NARF website (www.narf.org/sct/index.html).

To date, no Indian law cases have been granted review by the Court. Six petitions are currently pending, and a total of ten petitions have been denied. As anticipated, on January 15, 2010, the United States filed a petition seeking review of a decision by the U.S. Court of Appeals for the Federal Circuit in Tohono O’odham Nation v. United States. In Tohono O’odham, the Federal Circuit found that 28 U.S.C. § 1500 does not preclude jurisdiction in the Court of Federal Claims when a Indian tribe has also filed an action in Federal District Court seeking different relief (e.g. money damages versus historical accounting). According to the United States, at least 31 pairs of cases have been filed by Indian tribes based on identical claims for breach of fiduciary duties in both the Court of Federal Claims and the Federal District Court seeking separate relief.

In an unexpected development, on January 13, 2010, the Court requested a response from the United States in Wolfchild (and Zephier) v. United States, a case which involves two groups of individuals who claim to be the descendants of the “loyal” Mdewakanton Sioux. The United States had waived its right of response—usually an indicator to the Court that the case is not worthy of review. Evidently, something in the case has caught the interest of the Court. The Wolfchild petitioners are seeking review of a decision by the U.S. Court of Appeals for the Federal Circuit which reversed the trial court’s finding of breach of trust by the United States. The Federal Circuit held that (1) the 1888, 1889 and 1890 Appropriation Acts enacted for the benefit of the loyal Mdewakanton Sioux and their lineal descendants which included lands, improvements to lands and monies as the corpus did not create a trust; and (2) even if the referenced Appropriations Acts did create a trust, the 1980 Act terminated that trust by transferring beneficial ownership to the three Mdewakanton Indian communities (Shakopee Mdewakanton Dakota Sioux Community, Lower Sioux Indian Community and Prairie Island Indian Community). This case could become a vehicle for the Court to further erode the nature of the United States’ trust responsibility, and to limit the scope of the fiduciary duties the United States owes to the Indian people.

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