Monday, January 10, 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.

There has been a stunning development in the Madison County v. Oneida Indian Nation of New York case. Today, the Supreme Court issued an order vacating the opinion and remanded Madison County v. Oneida Indian Nation of New York to the U.S. Court of Appeals for the Second Circuit. The remand order is a victory for the Oneida Indian Nation, the Tribal Supreme Court Project, and for all of Indian country. From the time when the Court granted review, this case was viewed as a prime opportunity for the Court to revisit its precedent and to carve out a significant exception to the doctrine of tribal sovereign immunity. At least for now, that result has been averted.

The remand order was based on the November 30, 2010 letter from the Oneida Indian Nation informing the Court that the Nation had passed a tribal “Declaration of Irrevocable Waiver of Immunity” which waived “its sovereign immunity to enforcement of real property taxation through foreclosure by state, county and local governments within and throughout the United States.” The Oneida Indian Nation recognized the inherent danger of the Court’s review of the doctrine of tribal sovereign immunity and informed the Court that it had taken this step “to clarify that, as contemplated by its prior posting of letters of credit covering taxes on all lands at issue in this case, it is prepared to make payment on all taxes that are lawfully due.” Evidently, the Court was persuaded that the declaration and waiver moots the primary question presented.

Unfortunately, in spite of the best efforts of the Project, last week the Court granted review in United States v. Jicarilla Apache Nation, a case involving a decision by the U.S. Court of Appeals for the Federal Circuit which upheld right of Indian tribes as beneficiaries to obtain all information relating to the management of their tribal trust funds by the United States. The Federal Circuit found that the federal government “cannot deny an Indian tribe’s request to discover communications between the United States and its attorneys based on the attorney-client privilege when those communications concern the management of an Indian trust and the United States has not claimed that the government or its attorneys considered a specific competing interest in those communications.” The Federal Circuit adopted the fiduciary exception to the attorney-client privilege in tribal trust cases which permits a beneficiary to discover information relating to fiduciary matters (including trust management). The Project will continue to work with the Tribe and all interested parties to secure the best possible result.

Click to read the full Update Memo.