We’ll post a link to the transcript of the oral argument for U.S. v. Jicarilla Apache Nation when it becomes available.
And just for the fun of it, here’s a poll based on yesterday’s post speculating on the reasons for delay in the U.S. v. TON decision:
As Acting SG Neal Katyal noted at Fed Bar, it’s the oldest argued case sitting on the Supreme Court’s list of pending cases, and he said that nearly three weeks ago.
Why no opinion yet (oral argument recap here)? Here are our speculative reasons….
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.
A slightly different list than our first post, this post looks at the top cases in Indian law based on hits to the post on Turtle Talk. These can include posts about preliminary matters in the case. Cases will only make one appearance on the list at their highest spot (adding the total number of hits from all posts on a case would not change the top ten list). We made a note when materials from a case made it into the top 20 most downloaded documents of the year.
1. Wells Fargo v. Lake of Torches EDC, post with materials on the case (the final decision post would be number 6 on this list; the final opinion is the 10th most downloaded document of the year).
2. Red Earth LLC v. United States, preliminary injunction in PACT Act case (additional materials in this case would be number 10 on this list).
3. United States v. Fred Paquin, indictment of former Sault Tribe chief of police (the indictment is the 8th most downloaded document of the year).
4. Miranda v. Nielson, federal court rejects tribal stacked sentencing.
5. Saginaw Chippewa Tribe v. Granholm, boundary settlement materials.
6. United States v. Cavanaugh, federal district court dismissal of indictment as previous uncounseled convictions in tribal court could not be used as evidence of “habitual offender” status.
7. Menominee Tribal Enterprises v. Solis, OSHA applies to tribal enterprise (the decision in this case is the 20th most downloaded document for the year).
8. Pacheco v. Massengill, federal district court grants ICRA habeas petition.
9. Attorney’s Process and Investigation Services v. Sac and Fox Tribe, federal court upholds tribal jurisdiction over nonmember.
10. United States v. Tohono O’odham Nation, Supreme Court grants cert.
United States v. Tohono O’odham Nation
No. 09-846
Argument Recap
On Monday, the Supreme Court heard oral argument in United States v. Tohono O’odham Nation, No. 09-846, an important case concerning the ability of Indian tribes and a broad range of other potential plaintiffs (such as government contractors and plaintiffs challenging regulatory takings) to obtain full redress for claims they have against the United States government. The case concerns the proper interpretation of 28 U.S.C. § 1500, a statute that strips the Court of Federal Claims (“CFC”) of jurisdiction over any claim “for or in respect to which” the plaintiff has another claim pending in federal district court. Since the CFC is, for most intents and purposes, the only court that can provide monetary relief to plaintiffs in claims against the United States, the question under the statute that this case presented is whether plaintiffs that have claims for equitable relief (here, an accounting) already pending in federal district court can then seek money damages in the CFC for the United States’ breach of its duties managing that same trust in the CFC. Anthony Yang argued the case for the Government while Danielle Spinelli argued the case for the Tohono O’odham Nation.
Unlike some recent Supreme Court cases involving issues implicating tribal interests (such as Plains Commerce Bank or City of Sherrill), the Justices’ questions suggested that they found difficulties with both sides’ positions and were struggling to understand the practical implications of a ruling for either side. In particular, given some skeptical questions asked by Chief Justice Roberts, it was far from clear that a majority of the Court would be willing to adopt the very broad rule sought by the Government , which would preclude CFC jurisdiction in any case in which a “related” case is pending in another court, even if it seeks different relief. Justice Ginsburg tested the limits of that position early in the argument by asking Mr. Yang whether sequential suits could be brought such that a case brought to final judgment in the district court could then be brought in the CFC. While he conceded that the statute did allow for such sequencing, he nonetheless recognized that some suits may not be completed before the statute of limitations would run on the CFC claim. He argued that Congress, aware of the possibility that complete relief may not be available to a plaintiff depending on the timing, nevertheless enacted Section 1500, knowing that plaintiffs would be forced to choose to pursue their claims in the CFC or the district court but not both. Thus, if there are hardships created by that “strict” reading of the statute, Yang argued, Congress can remedy the situation. But the Court should not permit parties to take “two bites at the apple.”
Chief Justice Roberts appeared to take issue with such a simplified view of the statute and the potential harm that could be caused by the adoption of the rule the Government would have and, to that end, pressed Yang on the precise contours of accounting claims and the type of relief they afford. Indeed, the Chief Justice appeared to agree, as the Nation had argued in its briefing, with the distinction between an accounting claim in the district court – which essentially asks “what have I got in my account” – and a claim that seeks money damages for breach of obligations regarding that same trust account.
Note: We anticipate commentary from additional experts as well a little later.
Despite an opening flurry of difficult questioning for the government’s counsel, today’s oral argument exemplifies the tough road Indian nations face when litigating in the Supreme Court. Today’s case concerns the rather arcane civil procedure question of whether a party suing the government for money damages in the Court of Federal Claims can bring a second/simultaneous suit in federal district for injunctive remedies that may or may not be available in the CFC.
Early questioning from Justices Sotomayor, Ginsburg, and Breyer (and even Chief Justice Roberts to some extent) forced the government lawyer to concede that there may be a “tough choice” for plaintiffs to make when suing the government in certain instances — sue for money damages or sue for injunctive relief, but not both — with the only remedy left being a trip to Congress to change the outcome.
At page 20 of the transcript, Justice Breyer asked the following question:
Here.
Our discussion of the Tohono O’Odham case here and our choice to cover SCOTUSblog here.
Here is the post via SCOTUSblog:
Argument preview: CFC jurisdiction over claims pending in federal court
Daniel Thies previews United States v. Tohono O’Odham Nation, which is scheduled for oral argument on Mondayoral arguments over whether 28 U.S.C. § 1500 deprives the Court of Federal Claims of jurisdiction over claims concerning the government’s breach of trust when the plaintiff has an identical claim pending in federal court. Daniel Thies, a clerk for the Honorable Jerry E. Smith of the United States Court of Appeals for the Fifth Circuit, previews the case for the American Bar Association’s PREVIEW of U.S. Supreme Court Cases; the ABA has generously agreed to share some of its previews – which are authored by practitioners and scholars in the field – with SCOTUSblog. You can read Mr. Thies’ preview here; PREVIEW’s website is here.
It’s a long enough answer, full of subjectivity, but worth discussion in the context of the United States v. Tohono O’odham Nation case, to be argued Nov. 1.
Why is this case so important? There’s no split in authority to be seen, and there hasn’t even been a judgment against the United States yet. So under Supreme Court Rule 10, we’re left with “importance” or the “gross error” of the lower court.
The real question is whether the United States must defend two sets of claims filed in different courts. Money claims against the U.S. are normally filed in the Court of Federal Courts, and other claims can be filed in district court. TON filed a claim for equitable relief in DCT, and then a money damages claim in the CFC. The question is whether both claims are allowable under 28 USC 1500 (in other words, are they different claims).
So what’s so important about this case? Why now? Why not wait to see if the government loses a money judgment?
Perhaps the “importance” of money claims is the possible magnitude of them. Remember, the damages award in the Navajo Nation Peabody Coal claim was $600 million (and upwards of $1 billion after interest); the original Black Hills award was $17.5 million (now much more than that); and the Cobell award could have been billions (and the settlement was around $3 billion). Who else has repeated money claims of that magnitude against the federal government?
Indian tribes, that’s who.
Here: 09-846 Osage Nation.
Turtle Talk 
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