Updated Preview of 2010 Supreme Court Term

One petition has already been granted (United States v. Tohono O’odham), and three petitions are up for review at today’s conference. There could be six or more Indian law-related Supreme Court cases decided this Term, more than any Term in the last few decades. Note that the of the seven cases listed here, only one was filed by an Indian or Indian tribe (no. 4, the Iron Thunderhorse case, which likely has no real chance of being granted). The rest were filed by either a state government or subdivision, or the federal government.

As noted in our earlier comments on today’s SCOTUSblog petitions to watch, petitions filed by tribal interests tend to disappear. That means that petitions brought by tribal interests to challenge the denial of Schaghticoke federal recognition (which, if you’ll recall, was initially favorable until a private meeting with then-Secretary Norton and several powerful Connecticut politicians), Indian self-determination act challenges, a challenge to the application of the tobacco Master Settlement Act to on-reservation sales, and others probably will die on the vine.

Here’s an update to our early preview (available here).

Petition Granted:

1. United States v. Tohono O’odham Nation (09-846)

Question presented:

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over “any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States” or its agents “pending in any other court.” The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.

This is a case in which Justice Kagan will have to sit out, due to her participation as Solicitor General. For the T.O.N., it might be a good thing, in that the respondents now only need four votes to prevail.

Petitions on the SCOTUSBlog “Petitions to Watch” for Today’s Long Conference:

2. Hogan v. Kaltag Tribal Council (09-960)

Question presented:

Whether, for purposes of the Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq., a tribal court has
concurrent jurisdiction with state courts to initiate and adjudicate a child-custody proceeding about an Indian child, when the child and her biological mother are tribal members and the nonmember biological father does not object to tribal-court jurisdiction, and when the child is not domiciled or residing within a reservation. [Note: This is the OSG’s statement of the question presented, brought in opposition to the petition.]

3. Gould v. Cayuga Indian Nation (10-206)

Question presented:

I. Whether the New York State Court of Appeals in its 4-3 decision in Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614 (2010), properly interpreted federal law on a matter it believed the United States Supreme Court had not yet addressed in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance.

II. Whether in that decision the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua despite the fact that the Cayuga Indian Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.

4. Iron Thunderhorse v. Pierce (09-1353)

Question presented:

Whether the court of appeals misinterpreted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., to require only a minimal showing that a prison grooming rule which concededly imposes a substantial burden on religious exercise is the “least restrictive means of furthering [a] compelling governmental interest.”

Additional Petitions Not Yet Distributed but Likely to be “Petitions to Watch”:

5. Madison County v. Oneida Indian Nation (10-72)

Question presented:

1. whether tribal sovereign immunity from suit, to the extent it should continue to be recognized, bars taxing authorities from foreclosing to collect lawfully imposed property taxes.

2. whether the ancient Oneida reservation in New York was disestablished or diminished.

SCOTUSblog has this as a notable petition.

6. Schwarzeneggar v. Rincon Band (10-330)

Questions presented:

1. Whether a state demands direct taxation of an Indian tribe in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it bargains for a share of tribal gaming revenue for the State’s general fund.

2. Whether the court below exceeded its jurisdiction to determine the State’s good faith in compact negotiations under Section 11 of the Indian Gaming Regulatory Act, when it weighed the relative value of concessions offered by the parties in those negotiations.

7. United States v. Jicarilla Apache Nation (no docket number)

Question presented:

Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.

5 thoughts on “Updated Preview of 2010 Supreme Court Term

  1. Penny Coleman September 27, 2010 / 8:15 pm

    please subscribe

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