Supreme Court Recap: 2010 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

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Note from Patricia Millett on the Developments in the Osage Case

[Moved up from James Meggesto’s comment.]

A quick note from Patricia Millett – who has been handling the case for the Osage Nation at the Supreme Court level – for those readers that may be interested in the background and timing going forward. On March 5, 2010, the Tenth Circuit held that the Osage Nation’s reservation had been disestablished, and it did so in the acknowledged absence of any textual direction from Congress and despite recognition of the Reservation by the Executive Branch of the U.S. Government. After the Tenth Circuit denied rehearing, the Osage Nation filed a petition for certiorari with the Supreme Court seeking review of a conflict in the circuits concerning the proper mode of analyzing disestablishment questions. Today’s order from the Supreme Court calling for the views of the Solicitor General on the Nation’s petition is a significant development in the case because it signals that the Supreme Court is looking seriously at the petition, and the United States’ views on this important question will now be officially obtained for the first time in this case. Indeed, one might question whether, as a basic matter of separation of powers, a court could hold that a reservation has been disestablished without any express direction from Congress or obtaining the views of the United States government. Given the timing of the Court’s order, it is likely that the United States will file its brief in response to the Court’s order in May and the Court will act on the petition before the end of the Term in June.

Supreme Court Calls for the Views of the Solicitor General in the Osage Reservation Disestablishment Case

Here is today’s order, with the Osage Nation v. Irby petition mentioned on page 2.

Cert stage briefs are here.

This is the sixth CVSG in an Indian law cases in the last two years.

Today’s Conference: Osage v. Irby (A Petition to Watch)

From SCOTUSblog:

Osage Nation v. Irby
Docket: 10-537
Issue(s): (1) Whether, in determining whether Congress “disestablished an Indian reservation,” pursuant to Solem v. Bartlett (1984), courts are limited to the statutory text, legislative history, and views of the Executive Branch or can instead also consider other external indicia; and (2) whether the lower court properly ruled that a Native American tribe’s reservation had been “disestablished.”

Certiorari stage documents: