Monday, October 4, 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).

The U.S. Supreme Court held its opening conference on Monday, September 27, 2010, in which it considered eight petitions for writ of certiorari in Indian law and Indian-law related cases. In its order of October 4, 2010, the Court requested the views of the U.S. Solicitor General in one Indian law case, Thunderhorse v. Pierce, which seeks review of a decision by the U.S. Court of Appeals for the Fifth Circuit which held that the prison’s enforcement of its grooming rules, including the prohibition of long hair on men with no exception for Native American religious practitioners, does not violate the Religious Land Use and Institutionalized Person’s Act.

Without comment, the Court denied review of the other seven Indian law petitions (see the full update memo for details). The denial of review preserves important victories in the lower courts in Hoffman v. Sandia Resort & Casino and Hogan v. Kaltag Tribal Council. In Hoffman v. Sandia Resort & Casino, the Court denied a petition seeking review of a decision by the Court of Appeals of New Mexico which held that the doctrine of tribal sovereign immunity barred a non-Indian’s claims related to a $1.5 million jackpot payout from a slot machine that “malfunctioned.” The Court of Appeals also held that the limited waiver of immunity within the tribal-state gaming compact for physical injury to persons or property did not apply to his claims. The petitioner had asked the U.S. Supreme Court to carve out “a narrower and more equitable application of tribal immunity in the context of tribal gaming under the provisions of the Indian Gaming Regulatory Act.”

In Hogan v. Kaltag Tribal Council, the Court denied the State of Alaska’s petition seeking review of a Ninth Circuit decision which upheld the authority of the Kaltag Tribal Court over a tribal member-child placement proceeding. In the view of the State, since there are no reservations (with one exception) in Alaska, Native villages have no authority under the Indian Child Welfare Act over child placement proceedings, except the authority to request transfer of tribal member-child placement proceedings from state courts. In its petition, the State sought to characterize the dispute as a challenge to “the tribe’s effort to enforce a decree entered in a child custody proceeding involuntarily initiated in tribal court involving non-members domiciled outside of Indian country.” The Court had invited the U.S. Solicitor General to file a brief expressing the views of the United States in which the Solicitor General recommended that the Court deny review.

The Court’s next scheduled conference is October 8, 2010, during which it will consider Madison County v. Oneida Indian Nation of New York. In Madison County, the Second Circuit held that the Tribe is immune from suit in foreclosure proceedings for non-payment of county taxes involving fee property owned by the Tribe. This petition is the latest chapter of a lengthy dispute over payment of taxes addressed by the Supreme Court in 2005 in City of Sherrill v. Oneida Indian Nation of New York. Five amicus briefs, including an amicus brief on behalf of the State of New York joined by seven other states, have been filed in support of the petition. This is definitely a petition to watch!

You can find copies of briefs and opinions on the major cases we track on the Project’s website (www.narf.org/sct/index.html).



To view the complete Update Memorandum CLICK HERE.