Here is the latest pleading from the counties, seeking a stay from the CA2 on the reservation boundaries question:
Here was our last post, with the counties seeking en banc review of the reservation boundaries issue (the court recently denied the petition).
Here are the materials in Cayuga Indian Nation v. Seneca County (W.D. N.Y.):
This appears to be the same issue the SCT took up in Madison County v. Oneida Indian Nation last year.
Here is the article.
As one commentator noted to us, the author must not have heard of Madison County v. Oneida Indian Nation, last Term.
The Supreme Court’s 2010 Term — for tribal interests — was a flurry of activity, but with little to show for it. In Shakespeare’s words, full of sound and fury but signifying nothing (or almost nothing). Our two previews are here and here. Our previous mid-Term updates are here and here.
The underlying theme of the Term seems to be the aggressive campaign by the Department of Justice to undermine the tribal-federal trust relationship. Of note, the once-prominent and now-discredited Lone Wolf period where the Supreme Court granted free reign to Congress and the Executive branch appears to be recurring, with the Executive branch now enjoying virtually unlimited authority to handle tribal trust property with little or no consultation. Also, for the sixth consecutive Term, and for every Term except 1996, the Court granted zero tribal petitions.
Granted Cases
1. United States v. Tohono O’odham Nation (09-846). Loss.
The Court ruled 7-1 against the Nation (with Justice Kagan recused). Only Justice Ginsburg dissented. The Court then GVR’d a similar case, United States v. Eastern Shawnee. Within a few weeks of the outcome, the government began moving for dismissal of claims around the country, the first apparently being the Goodeagle case.
Oral argument recaps are here and here (from Millett and Meggesto). The oral argument transcript is here.
2. Madison County v. Oneida Indian Nation (10-72). GVR.
This is the big surprise of the Term (and it appears the closest thing to a “win” for tribal interests), with the Supreme Court granting cert on the question whether tribes are immune from foreclosures by counties for failure to pay property taxes, and then the Oneida Indian Nation enacting an ordinance purporting to waive its immunity from such suits. Over the petitioners’ objections, the Court remanded the case back to the Second Circuit for reconsideration in light of Oneida’s waiver.
3. United States v. Jicarilla Apache Nation (10-382). Loss.
Easily the biggest case for tribal interests the Court granted this Term, and the biggest disappointment. The Court ruled 7-1 (with Justice Kagain recused, and Justice Sotomayor dissenting) that common law fiduciary trust law doesn’t apply to Congressionally-created trusts. The outcome here means that It remains to be seen whether other trusts would survive the ruling. The case attracted attention from a national Court observer (Andrew Cohen), who harshly criticized the decision (here).
The oral argument transcript is here.
CVSGs
Much has happened and much is in limbo in this Term so far. Our two previous previews are here and here. Our previous mid-Term update is here.
Granted Cases
1. United States v. Tohono O’odham Nation (09-846).
The opinion in this matter will likely be available at any time, as many cases submitted to the Court around the same time have been decided already. If the Court does not issue an opinion next week, it may mean that there is a significant dissent or concurrence being generated. Oral argument recaps are here and here (from Millett and Meggesto). The oral argument transcript is here.
2. Madison County v. Oneida Indian Nation (10-72). GVR.
This is the big surprise of the Term, with the Supreme Court granting cert on the question whether tribes are immune from foreclosures by counties for failure to pay property taxes, and then the Oneida Indian Nation enacting an ordinance purporting to waive its immunity from such suits. Over the petitioners’ objections, the Court remanded the case back to the Second Circuit for reconsideration in light of Oneida’s waiver.
3. United States v. Jicarilla Apache Nation (10-382).
Other than Madison County, this is so far the biggest grant of the Term, with the United States seemingly seeking to limit its trust obligations to Indian nations dramatically. The case involves the government’s attorney-client privilege against the trust beneficiary in relation to trust-related documents. Oral argument is set for April 20.
Pending Petitions (CVSGs)
A very interesting development in the Supreme Court’s recent handling of the Indian law cases is the dramatic upswing in invitations to the Office of Solicitor General to opine on various cert petitions. Beginning last Term with Hogan v. Kaltag Tribal Council, the Court has issued a CVSG in five Indian law cases, far more than it ever has (though it makes perfect sense for the Court to ask the United States for advice on such petitions).
4. Brown v. Rincon Band (10-330).
The Court issued a CVSG in December 2010 in this case involving the IGRA good faith negotiation requirement after the Ninth Circuit held that California’s demand for revenue sharing violated the requirement. The invitation brief could come at any time.
5. Miccosukee Tribe v. Kraus-Anderson Construction Co. (10-717).
The Court CVSG’d this petition in January 2011. It’s a case involving federal jurisdiction over an effort by the Tribe to enforce a tribal court judgment against the construction company. Interesting in part because usually the Court pays little or no attention to tribal petitions for cert, so perhaps there is a change in the air. Expert commentary from Harold Monteau follows (Bethany Berger, I believe, made a similar argument in a comment, but I can’t find the posting):
One wonders why the Tribe did not seek registration/enforcement of its judgment in a State Court where KA has assets. The answer can only be that the Tribe’s legal counsel researched the possibility and came to the conclusion that a State Court would, under principles of comity, inquire into “due process” issues and would find that the denial of an appeal by a Tribal Council sitting as a court of appeals, knowing full well that it has a stake in the outcome, does not comport with thtat State Courts standards for due process and would not enforce the judgment. I don’t think the Supreme Court will grant cert. We are fast learning that Federal District Courts are courts of limited jurisdiction and jurisdiction can’t be premised pemised on an agreement. The Federal Court either has jurisdiction or it does not. Here, it does not. However, given the “activism” of the Court in recent years with regard to Indian cases, they could take it, uphold the Court of Appeals, but expound on issues of due process in tribal courts that don’t fit the “normal” American Jurisprudence scheme. I hope they just deny cert.
6. Osage Nation v. Irby (10-537).
Yet another CVSG, and the second CVSG of a tribal petition in the same Term (!). This case involves the Tenth Circuit’s holding that the Osage reservation has been disestablished by Congress, though it appears that the lower court applied the wrong standard in reaching the conclusion. Here is Patricia Millett’s commentary on the CVSG.
Here is the order.
Here is the SCT docket sheet.
And a news article on the issue, via Pechanga.
Three more letters from the parties have been filed with the SCt clerk’s office. Here they are:
Madison County Letter to Hon. Suter
Waxman Letter re Madison County v. Oneida, No. 10-72 – 12-2-10
Turtle Talk 
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