Heading into the sixth year of the Roberts Court, we note first that the last Term (2009) was the second Roberts Court Term that did not feature a single Indian law case. In the first five years of the Court, there have been only 5 Indian law decisions — all losses for Indian Country.
However, the upcoming Term features one case already, and several others that are likely to be granted. Note the general trends in Indian law cases in the Supreme Court petition stage: (1) the United States’ petitions are granted about 2/3 of the time, or more; (2) petitions by states and their subdivisions are granted about 1/3 of the time; (3) petitions by tribes are almost never granted. And even the OSG’s influence wanes when supporting tribal interests.
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.
As we’ve noted before, 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.
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.
Turtle Talk 