Wednesday, February 23, 2011

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).

At present, the Supreme Court remains extremely (and unusually) active in relation to its Indian law case docket. In its order of February 22, 2011, the Court invited the Solicitor General to file a brief expressing the views of the United States in Osage Nation v. Irby. This practice by the Court is known as a “CVSG” (Call for the Views of the Solicitor General) and generally occurs when the views of the federal government are relevant to a case in which the United States is not a party. It is not unusual for the Court to CVSG in an Indian law case on occasion—once every two or three years—particularly when the petitioner is a state or local government challenging an Indian tribe. Thus, it was not unusual for the Court to CVSG in the Hogan v. Kaltag Tribal Council case late last term when the State of Alaska challenged the authority of the Tribal Court over a tribal member-child placement proceeding (cert denied October 4, 2011).

However, the Court has now Called for the Views of the Solicitor General in a total of four Indian law cases this term: Osage Nation v. Irby (reservation disestablishment); Brown (formerly Schwarzenegger) v. Rincon Band (IGRA “revenue” sharing); Miccosukee Tribe v. Kraus-Anderson (enforcement of tribal court judgments); and Thunderhorse v. Pierce (Native American religious practices). In three of the four cases, Indian tribes and Indian interests have been on the top-side—the petitioners seeking review by the Court. The court denied review in Thunderhorse, but there is a good chance it may grant review in Osage Nation or Miccosukee Tribe, largely dependent on the views of the Solicitor General. In another remarkable development, the Court has requested a response from the State of Oklahoma in the Native Wholesale Supply case (state regulation of intertribal commerce)—the first time in the history of the Project that the Court has required a state government to respond to a petition filed by Indians. Although it would be premature to draw any conclusions regarding these “requests” by the Court, these developments may be the result of the addition of Justice Sotomayor and Justice Kagan on the Court. Perhaps one or both Justices are seeking a better understanding of the issues being raised and the law being applied by the lower federal and state courts in our Indian law cases.

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).Click to read the full Update Memo.