Here is the petition in Marcussen v. Sebelius:
Marcussen v Sebelius Cert Petition
Questions Presented:
1) Whether the Rooker Feldman doctrine should be overruled for denying all judicial relief by removing the subject matter jurisdiction of the federal courts to hear any civil action brought against federally mandated statutes enforced in the state courts.
2) Whether Congress has the authority to adopt laws intended to be primarily or exclusively enforced in the state courts.
Yesterday the Court decided CTS Corp. v. Waldburger (non-federal-Indian-law case). The Court held that injured parties cannot bring claims against corporations that pollute if the claim falls outside of a state statute of repose, even if the claim would be otherwise preserved by a federal law. Generally, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA) pre-empts state statutes of limitation, because Congress wanted to preserve injuries from pollution that can sometimes take years to discover. However, North Carolina also has a state statute of repose, which bars claims brought more than 10 years after the last culpable act. Since CERCLA only specifically identifies statutes of limitations and not repose, the Court found the claimants are unable to bring their damages claim against the company (which sold the land in 1987).
In her dissent with Justice Breyer, Justice Ginsburg would preserve the claim, finding Congress’s intent was to preserve these claims, regardless of the name of the state limitations statute.
Not only will this decision harm the landowners involved in the case, but those injured by contaminated wells at Camp Lejeune (a Marine base also in North Carolina), who currently have claims pending in the 11th Circuit. Article here from right after oral arguments (though it misjudges J. Kagan, who joined the majority in the case).
Here:
Filed right before the decision in Michigan v. Bay Mills came out, so it doesn’t take that case’s outcome into consideration.
Here:
The Court granted the petition here.
SCOTUSblog’s page on the case is here. Petitioner’s brief is here: Petitioner’s Brief
Here. Second story in the newscast.
This has made big news in SCT watcher circles. Prof. Lazarus’ draft Harvard Law Review article (which I suppose is itself subject to later revision) highlights two Indian law decisions, one of the Seminole Nation trust cases of the 1940s and Cass County in 1998.
The excerpt on Cass County:
The errata sheets have acknowledged the mistaken omission of the fact that Justices dissented and of an entire separate opinion of a Justice. The Court has even used the errata sheet to delete part of its rationale. In Cass County v. Leech Lake Bank of Chippewa Indians, decided in 1998, the Court explained that it declined to consider a particular legal issue concerning the scope of the Indian Nonintercourse Act because “the parcels at issue here are not alienable – and therefore not taxable – under the terms of the Indian Nonintercourse Act.” In a subsequent volume of the U.S. Reports, the Court described that reason as erratum and added that “this issue is outside the question presented in the petition for certiorari.”
An on Seminole Nation:
Seminole Nation v. United States, 316 U.S. 651 (1942) (amending opinion to make clear that certain legal issues were available for consideration on remand (see 316 U.S. 286 (1942))
Here, “Opinion details: Victory for Native American tribes . . . for now?”
An excerpt:
The Court acknowledged the “apparent anomaly” in the law: although states can sue tribes for illegal gaming activity on Indian lands, they cannot sue them for the same activity off Indian lands. “But,” the Court continued, “this Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address.” And – significantly – even if the state can’t sue a tribe for off-reservation illegal gaming, it still “has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.” Most state laws will apply to Indians off reservation, for example: Michigan “could, in the first instance, deny a license” for an off-reservation casino; if the tribe went ahead with the project anyway, it could sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws. Moreover, states also could seek a waiver to allow lawsuits for off-reservation gaming activity as part of its compact with the tribe regarding on-reservation gaming.
The Bay Mills Indian Community and the rest of Indian country dodged a very large bullet aimed by the State of Michigan at a core principle of inherent tribal sovereignty and tribal governance with today’s opinion by Justice Kagan. The stakes were incredibly high for tribal interests, and may remain so for the foreseeable future as more sovereign immunity cases work their way through the pipeline. In fact, Justice Kagan pointed out that several possible fact patterns that might justify serious reconsideration (“special justification”) are not before the Court:
We need not consider whether the situation would be different if no alternative remedies were available. We have never, for example, specifically addressed (nor, so far as we are aware, has Congress)whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct. The argument that such cases would present a “special justification” for abandoning precedent is not before us. Arizona v. Rumsey, 467 U. S. 203, 212 (1984).
Slip op. at 16 n. 8.
Turning away from the statutory and common law immunity analyses for a moment, it remains to be seen what Bay Mills has won here. Justice Kagan’s opening paragraph concludes with this phrase:
Michigan must therefore resort to other mechanisms, including legal actions against the responsible individuals, to resolve this dispute.
Slip op. at 1.
Later, she elaborates on the mechanisms Michigan might employ to defeat the underlying issue here — whether Bay Mills can open an off-reservation casino on lands acquired under the Michigan Indian Land Claims Settlement Act. Michigan has many advantages, it would appear, stemming from the tribe’s movement off the reservation:
And the resulting world, when considered functionally,is not nearly so “enigma[tic]” as Michigan suggests. Reply Brief 1. True enough, a State lacks the ability to sue a tribe for illegal gaming when that activity occurs off the reservation. But a State, on its own lands, has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory. Unless federal law provides differently, “Indians going beyond reservation boundaries” are subject to any generally applicable state law. See Wagnon v. Prairie Band Potawatomi Nation, 546 U. S. 95, 113 (2005) (quoting Mescalero Apache Tribe v. Jones, 411 U. S. 145, 148 (1973)). So, for example, Michigan could, in the first instance, deny a license to Bay Mills for an off-reservation casino. See Mich. Comp. Laws Ann. §§432.206–432.206a (West 2001). And if Bay Mills went ahead anyway, Michigan could bring suit against tribal officials or employees (rather than the Tribe itself) seeking an injunction for, say, gambling without a license. See §432.220; see also §600.3801(1)(a) (West 2013) (designating illegal gambling facilities as public nuisances). As this Court has stated before, analogizing to Ex parte Young, 209 U. S. 123 (1908), tribal immunity does not bar such a suit for injunctive relief against individuals, including tribal officers, responsible for unlawful conduct. See Santa Clara Pueblo, 436 U. S., at 59. And to the extent civil remedies proved inadequate, Michigan could resort to its criminal law, prosecuting anyone who maintains—or even frequents—an unlawful gambling establishment.See Mich. Comp. Laws Ann. §§432.218 (West 2001),750.303, 750.309 (West 2004). In short (and contrary to the dissent’s unsupported assertion, see post, at 11), the panoply of tools Michigan can use to enforce its law on its own lands—no less than the suit it could bring on Indian lands under §2710(d)(7)(A)(ii)—can shutter, quickly and permanently, an illegal casino.
Slip op. at 12-13.
I count several state law mechanisms; however, all are untested. Michigan has teed up a suit against tribal officials for injunctive relief. I guess we move there next, unless BMIC pays up and settles for a large percentage of off-reservation gaming revenues.
Also, the majority highlights two mechanisms expressly endorsed by counsel for the tribe at oral argument that I imagine most tribal leaders, perhaps even Bay Mills’, are not happy about: suing tribal officials for injunctive relief and utilizing state criminal laws. In this respect, the opinion (from the perspective of tribal interests) is tainted.
In the end, perhaps the biggest winner will be the Sault Ste. Marie Tribe of Chippewa Indians, which is making similar arguments as Bay Mills in favor of a Lansing MI casino, but has a somewhat stronger argument under the terms of the Michigan Indian Land Claims Settlement Act. Expect to see a denial of Michigan’s cert petition in the fall.
Finally, an most importantly, this is a lesson to Indian country on what kinds of cases are winnable, if not all the time (see Adoptive Couple) — statutory interpretation cases. Cases with common law aspects that can be argued as statutory interpretation cases like Bay Mills should be argued that way if at all possible.
Turtle Talk 
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