Litigation

March 31, 2021

Janet L. Yellen, Secretary of the Treasury, Petitioner, v.
Confederated Tribes of the Chehalis Reservation, et al., Respondents

Alaska Native Village Corporation, Inc. et al., Petitioners v.
Confederated Tribes of the Chehalis Reservation, et al., Respondents

AMICUS BRIEF

This case involves critical matters of self-determination important to all amici, and their Tribal nation members have a strong interest in making use of the crucial relief funds intended to help Tribal governments respond to COVID-19. The leaders of several amici submitted declarations to the District Court on the dire consequences befalling, and the challenges facing, their Tribal nation members during this crisis.
All amici curiae strive to protect the governmental authority of federally recognized Indian tribes, including those in Alaska, and the unique trust responsibility owed them by the United States. Congress allocated the funds at issue here to Tribal governments by cross-referencing an “Indian tribe” definition that precludes any entity other than a federally recognized Indian tribe from its practical application. In doing so, Congress recognized that Tribal governmental status is unique. It therefore channeled these particular funds to tribes with which the United States has a government-to-government relationship, and that have a uniquely governmental responsibility for the welfare of their Tribal members.

November 5, 2020

Ysleta Del Sur Pueblo, The Tribal Council, The Tribal Governor Michael Silvas or his Successor, Petitioners, V. State of Texas, Respondent. No. 20-493

AMICUS BRIEF

July 24, 2020

United States Of America, Petitioner v. Joshua James COOLEY Respondent., 2020 WL 4353085 (U.S.)

AMICUS BRIEF

Amicus Curiae (NCAI, ATNI, CTCA, ITA of AZ, USET and additional federally recognized Tribal Nations) the Crow Tribe of Indians is a sovereign, federally recognized Indian Tribal Nation with more than 14,000 enrolled citizens, approximately 9,000 of whom reside on the Crow Indian Reservation in southern Montana.  The Reservation spans nearly 3,500 square miles, encompasses parts of several counties and borders the City of Billings, the State of Wyoming, and the Northern Cheyenne Indian Reservation.  Notably, the Second Treaty of Fort Laramie between the United States and the Crow Tribe, executed on May 7, 1868, 15 Stat. 649 (“1868 Treaty”), established the terms of agreement between the two sovereigns and significantly reduced the Tribe’s land-base.  Among the promises made by the United States to the Crow Tribe, the very first—Article I of the 1868 Treaty—was the ability to ensure the apprehension and prosecution of “bad men,” including their exclusion from the Reservation, “upon proof.”  Officer James Saylor, then a Crow Tribal highway safety agent acting pursuant to a federal contract, investigated the Respondent after finding him parked on rural U.S. Highway 212 on the Crow Indian Reservation, and observing his blood-shot eyes, several firearms, drug paraphernalia and a toddler in the vehicle.  Officer Saylor’s investigation uncovered more than 50 grams of methamphetamine, a violation of both federal and Tribal law occurring within the Crow Indian Reservation. Tribal officers’ abilities to make on-the-spot decisions to protect Tribal members and non-Indians, to stem the flow of illegal drugs and contra-band, and to uphold the 1868 Treaty obligations are of fundamental importance to the Crow Tribe.

July 15, 2020

Penobscot Nation; United States, on its own behalf, and for the benefit of the Penobscot Nation,

Plaintiffs-Appellants/Cross-Appellees, v. AARON M. FREY, Attorney General for the State of Maine; JUDY A. CAMUSO, Commissioner for the Maine Department of Inland Fisheries and Wildlife; JOEL T. WILKINSON, Colonel for the Maine Warden Service; State Of Maine; Town Of Howland; True Textiles, Inc.; Guilford-Sangerville Sanitary District; City Of Brewer; Town Of Millinocket; Kruger Energy (Usa) Inc.; Veazie Sewer District; Town Of Mattawamkeag; Covanta Maine Llc; Lincoln Sanitary District; Town Of East Millinocket; Town Of Lincoln; Verson Paper Corporation, Defendants-Appellees/Cross-Appellants, Expera Old Town; Town Of Bucksport; Lincoln Paper And Tissue Llc; Great Northern Paper Company Llc, Defendants-Appellees,

TOWN OF ORONO, Defendant. (Case: 16-1424)

AMICUS BRIEF

Law360 7/16/2020 Article: Lawmakers Back Penobscot Nation Rights In Maine River

National Congress of American Indians (NCAI) and the Native American Rights Fund (NARF), filed a joint amicus brief in the case of Penobscot Nation v. Frey et al (previously Penobscot Nation v. Mills et al). The case concerns whether USET SPF member, the Penobscot Indian Nation, has the authority to regulate activities occurring on the Main Stem of the Penobscot River as a part of its reservation under settlement acts with the state of Maine and prior treaties. The state asserts that no part of the river falls within Penobscot’s reservation, despite the river running through Penobscot’s lands and its islands being considered part of the reservation. Meanwhile, state-sanctioned pollution of the river is impeding Penobscot’s sustenance fishing rights, among other issues. The case is receiving an en banc rehearing in the U.S. Court of Appeals for the First Circuit.
The joint amicus brief seeks to protect and uphold Tribal sovereignty by laying out the legal argument to support a reading of the settlement acts to include the Penobscot River. The brief addresses 4 of the 12 questions posed by the Court, including on the applicability of the Indian canons of construction. Specifically, we identify three distinct Indian canons of construction that this Court must employ in interpreting the Settlement Acts in order to comport with “the unique trust relationship between the United States and the Indians.” Ultimately, we argue that the Court must hold the government to its word in recognizing the Penobscot Nation’s sovereignty over its lands and resources, including the river and the submerged lands beneath it.

June 4, 2020

Confederated Tribes of the Chehalis Reservation, et al. v.  Steven Mnuchin (Case No. 20-cv-01002 (APM)) & Cheyenne River Sioux Tribe, et al. v. Steven Mnuchin (Case No. 20-cv-01059 (APM))
& Ute Tribe of the Uintah and Ouray Reservation, et al. v. Steven Mnuchin (Case No. 20-cv-01070 (APM))

AMICUS BRIEF (August 5, 2020)

AMICUS BRIEF (June 4, 2020)

NCAI, USET and the other 10 amici are national and regional organizations representing federally recognized Indian Tribal Nations and their interests across the United States. They each have an interest in this case because it involves important matters of Tribal sovereignty: the allocation of desperately needed relief funds to assist Tribal governments in dealing with the COVI-19 pandemic.  First, neither Congress nor the Executive has ever recognized ANCs as Indian Tribal Nations.  Second, ISDEAA did nothing more than identify ANCs as eligible pass-through entities, or contractors, for the provision of services and programs to Alaska Natives.  Third, as we set forth in our amicus brief in support of the Plaintiffs’ motions for temporary restraining order and preliminary injunction and as we revisit briefly below, the ANCs lack the sovereign powers of a Tribal government; those powers are retained and exercised only by Alaska Native villages.

May 21, 2020

Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers
Civil Action No. 16-1534, May 20, 2020 D.D.C.

AMICUS BRIEF

The Great Plains Tribal Chairmen’s Association, National Congress of American Indians Fund, Inter-Tribal Association of Arizona, Midwest Alliance of Sovereign Tribes, United South and Eastern Tribes Sovereignty Protection Fund, Affiliated Tribes of Northwest Indians, Association on American Indian Affairs, and 28 federally recognized Indian Tribal Nations (collectively “Amici Curiae”) submit this Amici Curiae brief in support of the  Standing  Rock  Sioux Tribe, Cheyenne River Sioux Tribe, Yankton Sioux Tribe, and Oglala Sioux Tribe.
Amici Curiae share an interest in maintaining the federal government’s fiduciary duty to protect the health and welfare of Indian Tribal Nations, including the natural resources necessary to sustain them. Amici Curiae offer critical context regarding the grave consequences of disregarding Tribal treaty rights and the necessary role courts play in the accountability of the federal government to Indian Tribal Nations.

May 13, 2020

Texas, et al., Petitioners, v. California, et al., Respondents.
U.S. Supreme Court, Nos. 19-840, 19-1019

AMICUS BRIEF

Amici are federally recognized Tribal Nations, local and regional Tribal organizations, and national Tribal organizations and all either operate health care facilities and provide direct health care services to their citizens and other beneficiaries, or they advocate on health issues affecting American Indian and Alaska Native people, or both.  When Congress enacted the Patient Protection and Affordable Care Act (ACA), it enacted along with it several provisions relating specifically to the Indian health system. In particular, Section 10221 amended and modernized the Indian Health Care Improvement Act (IHCIA).  These Indian provisions of the ACA have nothing  to do with health insurance or the individual mandate deemed unconstitutional by the District Court. Nevertheless, because the District Court held the individual mandate inseverable from the entire Act, its sweeping decision extended to them. The Fifth Circuit vacated the District Court’s severability ruling, but agreed that the individual mandate is unconstitutional. If this Court likewise agrees, the amici have a vital and urgent interest in ensuring that a proper severability analysis is applied to sustain the separate and severable Indian-specific provisions.

May 11, 2020

Mashpee Wampanoag Tribe v. Bernhardt, No. CV 18-2242 (D.D.C. May 11, 2020).

AMICUS BRIEF

Amicus Curiae is the United South and Eastern Tribes Sovereignty Protection Fund, which represents 30 federally recognized Tribal Nations from the Northeastern Woodlands to the Everglades and across the Gulf of Mexico. In March of 2020, DOI supplanted its longstanding legal framework for taking land into trust for Tribal Nations with a new legal standard and procedure that will significantly increase Tribal Nations’ burdens in the lawful restoration of our homelands. DOI’s abrupt change in policy was made without notice to Tribal Nations and failed to include any tribal consultation. Holding DOI and other federal agencies accountable for their Tribal consultation duties is a priority for USET SPF. Through this analysis, USET SPF believes its brief will aid the Court in determining the relevance of DOI’s withdrawal of its 2014 M-Opinion and issuance of new guidance as well as the relevance of cases upholding the reasoning in the 2014 M-Opinion, including Confederated Tribes of the Grand Ronde Community of Oregon v. Jewell.

January 28, 2020

Massachusetts v The Wampanoag Tribe of Gay Head (Aquinnah) (Case No. 16-1137)

AMICUS BRIEF

August 23, 2019

Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, No. 1:16-cv-01534-JEB (D.D.C. 2016)

AMICUS BRIEF

Amici are individual federally recognized Indian Tribal Nations from across Indian Country, along with leading national and regional Indian organizations.  These Tribal Nations and Tribal amici organizations share an interest requiring a meaningful role for Tribal consultation in the federal agency decision making process. They highlight the fact that the U.S. Army Corps failed to consider their views and urge the court to grant the Standing Rock Sioux Tribe, et al.,
Motion for Summary Judgment and asks that the voices of Indian Tribal Nations be heard in the manner that federal law and principles of Tribal sovereignty require.

April 18, 2019

Texas v. Alabama-Coushatta Tribe of Texas

AMICUS BRIEF – October 25

AMICUS BRIEF – April 18

Motion to file Amicus Brief in support of Alabama-Coushatta Tribe of Texas Petition for Rehearing En Banc

Amicus National Congress of American Indians (“NCAI”)  advise[s] Tribal, Federal, and State governments on a wide range of Indian issues, including the interpretation of Indian statutes and Amicus USET Sovereignty Protection Fund (“USET SPF”) is a non-profit organization representing 27 federally recognized Tribal nations in 13 states from Texas to Maine.
This case concerns concurrent efforts by Congress to restore to Federal recognition two Indian Tribal Nations in Texas, and to create a uniform framework for the regulation of gaming on Indian lands.  In 1987, Congress enacted the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes Restoration Act.  Each statute contained provisions subjecting gaming at the effected Tribal Nations to some State law. Restoration Act, § 106 (Ysleta del Sur Pueblo), § 207 (Alabama-Coushatta Tribe of Texas); Settlement Act, § 9.
This Court should grant rehearing en banc to review Alabama-Coushatta, and to reconsider its analysis and conclusions in Ysleta. Ysleta erroneously concluded that Congress intended to exclude certain Tribal Nations from IGRA—despite the lack of any textual basis for such exclusion, and contrary to Congress’s intent that IGRA would establish a uniform regulatory framework for gaming on Indian lands nationwide. Ysleta also failed to adhere to the maxim that statutes enacted for the benefit of Indians “are to be construed liberally in favor of the Indians, with ambiguous provisions interpreted to their benefit.” Montana v. Blackfeet Tribe, 471 U.S. 759, 766 (1985).  Rehearing en banc is necessary to ensure that IGRA’s purpose is effectuated in the Fifth Circuit, and that this Court’s opinions conform with those of the Supreme Court and other Circuits.

April 1, 2019

State of Texas; State of Wisconsin; State of Alabama; State of Arizona; State of Florida; State of Georgia; State of Indiana; State of Kansas; State of Louisiana; State of Mississippi, By and Through Governor Phil Bryant; State of Missouri; State of Nebraska; State of North Dakota; State of South Carolina; State of South Dakota; State of Tennessee; State of Utah; State of West Virginia; State of Arkansas; Neill Hurley; John Nantz, Plaintiffs-Appellees vs. United States of America; United States Department of Health & Human Services; Alex Azar, Ii, Secretary, U.S. Department of Health and Human Services; United States
Department of Internal Revenue; Charles P. Rettig, In His Official Capacity as Commissioner of Internal Revenue, Defendants-Appellants, State of California; State of Connecticut; District of Columbia; State of Delaware; State of Hawaii; State of Illinois; State of Kentucky; State of Massachusetts; State of New Jersey; State of New York; State of North Carolina; State of Oregon; State of Rhode Island; State of Vermont; State of Virginia; State of Washington; State of Minnesota, Intervenor Defendants-Appellants

AMICUS BRIEF

Letter from HSDW to Department of Justice in response to their change in position 4/1/2019

The 483 federally recognized Tribal Nations across the country who are amici or members of amici Tribal organizations are directly affected by the District Court’s decision to invalidate the Patient Protection and Affordable Care Act (ACA or Act) in its entirety – including Section 10221 and other Indian-specific health care provisions incorporated into the Act. While Section 10221 only represents a single page of the ACA, it incorporates by reference S. 1790, a 274-page bill that amended and permanently authorized the IHCIA.  Amici believe the District Court erred in its severability analysis, and believe the IHCIA and other Indian-specific provisions of the ACA must be preserved, regardless of how this Court views the constitutionality of the individual mandate.

March 15, 2019

United Keetoowah Band of Cherokee Indians In Oklahoma, Individually and on Behalf of All Other Native American Indian Tribes and Tribal Organizations, Et Al., Petitioners v. Federal Communications Commission and United States of America, Respondents

Case Document

HSDW Memo 19-011 August 16, 2019 – Tribes Prevail in Federal Court Challenge to FCC “Small Cell” Wireless Order

The Blackfeet Tribe, the Coushatta Tribe of Louisiana, the Fort Belknap Indian Community, the Rosebud Sioux Tribe, and the Ute Mountain Ute Tribe and United South and Eastern Tribes, Inc., collectively, “Blackfeet Petitioners” are federally recognized Tribal Nations and an intertribal organization who regularly consult with the FCC and other federal agencies in order to preserve and defend their unique and sacred cultural heritage from casual destruction through any federally-permitted activities.  Instead of working closely with Petitioners and other Tribal Nations and Tribal organizations as it had in the past and as is required by law and Respondent’s 2004 MOU with USET, the FCC abandoned Tribal consultation.  Although Petitioners all participated in the comment period on the New Rule, none had their concerns addressed.  The Blackfeet Petitioners challenge FCC’s attempts to excuse itself from its most basic federal legal obligations to consult with Indian Tribal Nations on a government- to-government basis, as both the National Environmental Protection Act (“NEPA”) and the National Historic Preservation Act (“NHPA”), and their corresponding regulations plainly require, and as likewise required by the FCC’s 2004 Memorandum of Understanding with Petitioner USET, by excluding the deployment of certain small wireless facilities from review and Tribal consultation and by placing onerous restrictions on Tribal review more generally.

July 2, 2018

Blackfeet Tribe, Coushatta Tribe of Louisiana, Fort Belknap Indian Community, Rosebud Sioux Tribe, Ute Mountain Ute Tribe, and United South and Eastern Tribes, Inc., Petitioners vs. Federal Communications Commission, and the United States of America, Respondents

AMICUS BRIEF

Petitioners challenge the FCC’s legal authority to promulgate regulations implementing the National Historic Preservation Act (“NHPA”) and categorically excluding itself from its statutory obligation to comply with Section 106 of the NHPA.

May 25, 2018

Chad Everet Brackeen, et al., Plaintiffs, v. Ryan ZINKE, in his official capacity as Secretary of the United States Department of the Interior, et al., Defendants., No. 4:17-868-O (N.D.Tex.) Brief for Amicus Curiae including United South and Eastern Tribes, Inc.

AMICUS BRIEF

Amici are individual federally recognized Indian Tribal Nations from across Indian Country, along with leading national and regional Indian organizations.  The vital protections provided by the Indian Child Welfare Act to Indian children, Indian families, and Indian Tribal Nations is of significant important to amici and their members.  The challenge to ICWA presented by Plaintiffs seek to diminish ICWA’s protections and undermine the unique trust responsibilities the United States owes to Indian children and Tribal Nations.

March 26, 2018

Poarch Band of Creek Indians v. Wilkes, 2018 WL 1512319 (U.S.)

Brief for Amicus Curiae United South and Eastern Tribes, Inc., in Support of Petitioners

AMICUS BRIEF

State courts around the country have recognized that Tribal sovereign immunity, like the immunity of other sovereigns, extends to tort claims to the extent not waived or abrogated. Yet, even as Tribal Nations have waived immunity in Tribal court or otherwise provided for redress of such claims in a manner similar to other governments, some state courts have ignored that fact and complained that the lack of a state court remedy against Tribal governments renders the doctrine of sovereign immunity intolerable and unjust when invoked by Tribal Nations. The extent of this phenomenon suggests that, were this Court to abstain from correcting the Alabama Supreme Court’s erroneous ruling, other state courts would view that abstention as permission to draw their own narrow boundaries around tribal sovereign immunity in contravention of this Court’s precedents and Congress’ policy judgments.

January 29, 2018

Upper Skagit Indian Tribe v. Lundgren, 2018 WL 637359 (U.S.)
Brief of Amici Curiae National Congress of American Indians, Association on American Indian Affairs, Lac Courte Oreilles Band of Lake Superior Chippewa Indians, Pueblo of Laguna, Pueblo of San Felipe, et al., in Support of Petitioner

AMICUS BRIEF

If the United States, instead of the Tribal Nation, had purchased the fee land in question, this lawsuit presumably would have been dismissed by Washington courts. Over the past 60 years,3 this Court has repeatedly stated that federal sovereign immunity cannot be evaded by sleights of hand such as naming a governmental official, or bringing an in rem action against government property. E.g., Block v. North Dakota ex rel. Bd. of Univ. & Sch. Lands, 461 U.S. 273, 280-86 (1983) (dismissing North Dakota’s suit seeking to quiet title to federal lands that supposedly passed into state ownership pursuant to the equal footing doctrine); Malone, 369 U.S. at 643-45 (holding that sovereign immunity barred an action for ejectment against a U.S. Forest Service official, where private plaintiffs claimed they *5 were the rightful owners of land purchased by the United States). If the government is the real party in interest, the suit is barred regardless of the named defendant, unless a clear and unequivocal waiver has been granted.4 Larson v. Domestic & Foreign Commerce Corp., 337 U.S. 682, 687-88 (1949).

September 25, 2017

Penobscot Nation; United States, on its own behalf, and for the benefit of the Penobscot Nation, Plaintiffs, Appellants, v. Janet T. MILLS, Attorney General for the State of Maine; Chandler Woodcock, Commissioner for the Maine Department of Inland Fisheries and Wildlife; Joel T. Wilkinson, Colonel for the Maine Warden Service; State of Maine; Town of Howland; True Textiles, Inc.; Guilford-Sangerville Sanitary District; City of Brewer; Town of, 2017 WL 4390111 (C.A.1)
Brief of Amici Curiae National Congress of American Indians and the United South & Eastern Tribes, Inc., Supporting Petitions for Rehearing/Rehearing En Banc

AMICUS BRIEF

Amici agree with Petitioners, the Penobscot Nation (“Nation”) and the United States, that the Panel’s decision conflicts with Alaska Pacific Fisheries v. United States, 248 U.S. 78 (1918), and Maine v. Johnson, 498 F.3d 37 (1st Cir. 2007).  In addition, and of great concern to Amici, the Panel applied the incorrect legal standard to interpret the Maine Indian Claims Settlement Act (“MICSA”),1 including provisions incorporating the Maine Implementing Act2 (together, “Settlement Acts”). The Panel ignored general rules of statutory construction, and the particular rules for construing statutes enacted for the benefit of Indians. The Panel also ignored the longstanding Supreme Court and First Circuit rule that Congress must act clearly when it divests a Tribal Nation of its existing rights, and that all rights not clearly abrogated remain with the Tribal Nation.

September 7, 2017

The Miccosukee Tribe Of Indians Of Florida, Appellant, v. Lewis TEIN, P.L., Guy Lewis, and Michael Tein, Appellees., 2017 WL 4891289 (Fla.App. 3 Dist.)
United South and Eastern Tribes, Inc. And National Congress of American Indians Amici Curiae Brief in Support of Appellant’s Opposition to Appellees’ Motion for Certification

AMICUS BRIEF

The Court’s decision upholding tribal sovereign immunity was correctly reached and in line with well-established law. A decision by the Court to now certify appellees’ question as an issue of great public importance warranting Florida Supreme Court review would breathe life into appellees’ wrongful attempt to narrow Tribal sovereign immunity. It would imply that case law regarding Tribal sovereign immunity in this context is anything less than steadfast and clear. Amici therefore have a strong interest in urging this Court not to certify the question to the Florida Supreme Court.

February 21, 2017

Standing Rock Sioux et al. v USACE and DAPL, No. 16-cv-1534 (D.D.C.)
Memo in Support of Tribe’s Motion for Partial Summary Judgment

AMICUS BRIEF

DAPL Amicus Workgroup – NCAI, Tribes, Organizations Filed February 21, 2017

The Amici Tribal Nations have suffered the vast loss of lands and other fundamental resources and rights reserved to them under law, often by solemn treaty obligation, when the federal government determined it was advantageous to disavow its prior commitments to them. Some of the most grievous losses are not remnants of a distant past, but as in the case of the Standing Rock Sioux Tribe and other Sioux nations, took place within living memory. The loss of Tribal lands, communities, and indeed entire ways of life due to the infrastructure projects, development, and rampant pollution of the twentieth century is an all-too-familiar tale for Indian peoples, and examples of such dispossession span the breadth of the country.

January 23, 2017

The Miccosukee Tribe Of Indians Of Florida, Appellant, v. Lewis TEIN, P.L., Guy Lewis and Michael Tein, Appellees., 2017 WL 3835485 (Fla.App. 3 Dist.)
USET Amicus Brief in Support of Appellant

AMICUS BRIEF

USET Sovereign Immunity Amicus (Miccosukee Tribe of Indians of Florida) January 23, 2017

In the modern era, Tribal sovereign immunity has taken on new significance for Indian Tribal Nations across the United States. As Indian Tribal economies have had an increasingly significant impact on the surrounding communities and economies, Tribal Nations have developed advanced court systems, adopted government tort claims acts similar to federal and state governments, and entered into countless contracts and agreements where they have carefully negotiated limited waivers of sovereign immunity for a myriad of purposes and as part of a bargained-for exchange. All of these developments are based on established doctrines regarding the nature of Tribal sovereign immunity found in federal law and set forth in this memorandum. The decision below tears at the fabric of these doctrines in a manner that destabilizes this area of law and would undermine well-recognized Tribal authority to define the terms of sovereign immunity waivers.

December 21, 2016

Lewis v. Clarke, 2016 WL 7644925 (U.S.)
Brief for Amici Curiae Seminole Tribe of Florida, et al., in Support of Respondent

AMICUS BRIEF

Amici Tribal Nations and USET member Tribal Nations (collectively “Amici Tribal Nations”) have a strong interest in this case because of its potential impact on the scope of immunity for Tribal officials and employees and the range of core sovereign interests that immunity protects.4 But Amici Tribal Nations’ interest in this case also extends to its potential impact on a wide array of negotiated intergovernmental agreements and Tribal laws that govern Amici Tribal Nations’ working relationships with their sister governments and commitments to individual state and Tribal citizens, and which specify tort remedies and immunity waivers as negotiated *3 between the sovereigns and as appropriate to the specific parties and their situations. These agreements include Tribal-State gaming compacts entered into under the Indian Gaming Regulatory Act, 25 U.S.C. § 2701 et seq. (IGRA), through which Congress has preempted the field of Indian gaming. Under the IGRA, Tribal Nations and States that wish to negotiate remedies for tort claims related to Class III gaming must use the Tribal-State compact process.

May 11, 2016

Redding Rancheria v Burwell,
Brief of ANHB et al in Support of Reddings Cross-Motion for Summary Judgment

AMICUS BRIEF

Amicus Brief in support of Redding Rancheria Civ. No. 14-2035 May 11, 2016
* HSDW Memo March 27, 2017: Report on the Oral Argument Held Friday, March 24, 2017 in Redding Rancheria v. Price

Amici and their member Tribal Nations have a strong interest in this litigation because the IHS has taken the position in its briefs that Section 2901(b) of the Affordable Care Act (ACA), 25 U.S.C. § 1623(b), overrides the IHS’s longstanding policy exempting Tribal self-insurance plans from its “payer of last resort” rule for purposes of CHS and CHEF. This is the first time the IHS has taken such a position in the six years since that provision was enacted by Congress.

April 28, 2016

Shinnecock Indian Nation v. State of New York, 2016 WL 1715308 (U.S.)
Brief for Amici Curiae Federal Indian Law Professors, National Congress of American Indians, and United South & Eastern Tribes, Inc. in Support of Petitioner

AMICUS BRIEF

Amicus Brief in support of Shinnecock Indian Nation No. 15-1215 April 28, 2016

We submit this brief to highlight the extent to which the remarkably troubling ruling below – conferring a large and amorphous “equitable” immunity, based on the “disruption” associated with the passage of time, for violations of federal statutes, treaties, and common law – (1) undermines responsible reservation governance initiative and interrupts a long history of good faith resolution of Indian claims in accordance with the United States’ duty of protection to Indian nations and Indian people, and (2) contravenes the considered judgments of the executive and legislative branches and of this Court.

March 17, 2016

Little River Band of Ottawa Indians Tribal Government v. N.L.R.B., 2016 WL 1069393 (U.S.)
Brief for Amici Curiae United South and Eastern Tribes, Inc., Et Al.,* in Support of Petitioner

DAMICUS BRIEF

USET Participates in Little River Band of Ottawa Amicus Brief – March 17, 2016

Amici share a strong interest in this case because of the impact the Sixth Circuit’s ruling will have on their ability as governmental entities to regulate the presence and conduct of labor organizations on their Tribal lands, and to effectively manage the impacts of organized labor activity on their delivery of essential governmental services to Tribal citizens. As illustrated in this brief, many Tribal Nations including amici and USET member Tribal Nations have in place Tribal laws to govern public sector employment and protect governmental programs, services, and interests.3 The ruling below threatens the ability of Tribal Nations to adopt and enforce those laws. As such, this case implicates the self-government rights and sovereign interests of amici Tribal Nations and USET member Tribal Nations.

March 17, 2016

Soaring Eagle Casino and Resort v. N.L.R.B., 2016 WL 1069013 (U.S.)
Brief for Amici Curiae United South and Eastern Tribes, Inc., et al.* in Support of Petitioner

AMICUS BRIEF

Amici share a strong interest in this case because of the impact the Sixth Circuit’s ruling will have on their ability as governmental entities to regulate the presence and conduct of labor organizations on their Tribal lands, and to effectively manage the impacts of organized labor activity on their delivery of essential governmental services to Tribal citizens. As illustrated in this brief, many Tribal Nations including amici and USET member Tribal Nations have in place Tribal laws to govern public sector employment and protect governmental programs, services, and interests.3 The ruling below threatens the ability of Tribal Nations to adopt and enforce those laws. As such, this case implicates the self-government rights and sovereign interests of amici Tribal Nations and USET member Tribal Nations.

December 24, 2015

Confederated Tribes of the Grand Ronde Community Of Oregon, Plaintiff-Appellant. Clark County, Washington, et al., Plaintiff-Appellants, v. Sally Jewell, in her official capacity as Secretary of the Interior, et al., Defendants-Appellees. Cowlitz Indian Tribe, Intervenor-Appellee., 2015 WL 9433460 (C.A.D.C.)
Brief of United South and Eastern Tribes, Inc. And Jamestown S’Klallam Tribe as Amici Curiae in Support of Intervenor-Appellee, Supporting Affirmance

AMICUS BRIEF

USET member Tribal Nations retain only small remnants of their original homelands today. Since the Indian Reorganization Act of 1934 (“IRA”) was enacted, USET-member Tribal Nations have been able to purchase land and petition the Secretary of the Interior (“Secretary”) to place that land into trust status for a wide variety of purposes. The interpretation of the IRA is therefore of special *2 importance to USET and is an area of federal Indian law in which USET has developed particular expertise.

October 22, 2015

Dollar General Corporation v. Mississippi Band of Choctaw Indians, 2015 WL 6406720 (U.S.)
Brief of Amici Curiae National Congress of American Indians, et al.,* in Support of Respondents

AMICUS BRIEF

National Tribal Amicus Brief Dollar General Corporation v MBCI October 22, 2015

National Tribal Amicus Brief Submitted in Dollar General

Amici share a strong interest in this case because of the sweeping impact its resolution could have on their ability (or the *2 ability of their member Tribal Nations) to exercise civil adjudicative jurisdiction over nonmembers on Tribal lands. Amici’s interest in maintaining such jurisdiction stems from their interests in Tribal self-government and the protection of their members and territories; in the maintenance and enforcement of civil law and order on Tribal lands; and in ensuring that justice and the protection of the law are extended to all persons on reservation lands.

September 17, 2014

STATE OF ALABAMA, Plaintiff-Appellant, v. PCI GAMING AUTHORITY, et al., Defendants-Appellees., 2014 WL 4784160 (C.A.11)
Brief of United South and Eastern Tribes, Inc. as Amicus Curiae in Support of Defendants-Appellees and Supporting Affirmance

AMICUS BRIEF

USET Amicus Brief (State of AL vs PCI Gaming Authority) – Filed Sept 17, 2014

Letter to Clerk with Amicus Brief – Sept 17

The State of Alabama (the “State”) seeks to collaterally attack the trust status of lands that have been held in trust by the United States for the Poarch Band of Creek Indians (the “Tribe”) pursuant to the Indian Reorganization Act (the “IRA”) for over nine and up to 20 years. USET agrees with the Tribe that the claims made by the State cannot be raised in this case and in this forum, and were properly dismissed by the District Court.

May 13, 2014

Harrison v PCI Gaming d/b/a Creek Entertainment, No. 1130168 (Supreme Ct. of Ala.)
Brief of USET and NCAI as Amici

AMICUS BRIEF

Amicus Brief FILED: Harrison Family v PCI Gaming May 13, 2014

While USET and NCAI take no position on the underlying merits of the dispute at issue in this case, their member Tribal Nations have a strong common interest in opposing Appellant Harrison’s attempt to collaterally attack the very existence of the Poarch Band of Creek Indians in an effort to overcome the doctrine of Tribal sovereign immunity from suit.

November 6, 2013

The Confederated Tribes of the Grand Ronde Community of Oregon, and Clark County, Washington, et al., Plaintiffs, v. S.M.R. JEWELL, in her official capacity as Secretary of the U.S. Department of the Interior, et al., Defendants, and COWLITZ INDIAN TRIBE, Intervenor-Defendant.
Brief of USET and Jamestown S’Kallam Tribe as Amici in Opposition to Plaintiffs’ Motion for Summary Judgment

AMICUS BRIEF

USET Jamestown Amicus Brief Submitted November 6, 2013

For the amici, the reacquisition and rebuilding of their homelands is of critical importance to achieving their goal of economic self-sufficiency as self-governing entities. The revenues generated from economic development enterprises on trust and reservation lands provide each Tribal Nation with the ability to strengthen its Tribal government, improve the quality of life of its citizens and provide capital for other economic development and investment opportunities.

October 31, 2013

State of Michigan v. Bay Mills Indian Community, 2013 WL 5915052 (U.S.) (U.S.,2013)
Brief of Amici Curiae Seminole Tribe of Florida, et al., in Support of Respondent Lytton Rancheria Coeur d’Alene Tribe Kickapoo Traditional Tribe of Texas Pueblo of Acoma Absentee Shawnee Tribe Navajo Nation Wichita and Affiliated Tribes Cherokee Nation Seminole Nation of Oklahoma Sault Ste. Marie Tribe of Chippewa Indians Jamestown S’Klallam Tribe

AMICUS BRIEF

Amicus Brief MI v. Bay Mills Indian Community – October 31, 2013

1. Whether a federal court has jurisdiction to enjoin activity that violates the Indian Gaming Regulatory Act (“IGRA”) but takes place outside of Indian lands.
2. Whether Tribal sovereign immunity bars a state from suing in federal court to enjoin a Tribal Nation from violating IGRA outside of Indian lands.

March 27, 2013

Adoptive Couple v. Baby Girl, 2013 WL 1279467 (U.S. 2013)
Brief of Amicus Curiae Seminole Tribe of Florida, et al., in Support of Respondents

AMICUS BRIEF

Amicus Brief Filed in Supreme Court in ICWA Case – USET March 27, 2013

As federally recognized Tribal Nations and Indian or Tribal organizations, amici have extensive knowledge and experience with regard to the operation of the Indian Child Welfare Act (ICWA). In particular, amici have first-hand knowledge of ICWA’s importance in protecting Indian children’s citizenship ties to their Tribal Nations. The realization and protection of these citizenship ties is critical both to Tribal self-governance and to the full exercise of the rights and responsibilities available to Indian children eligible for Tribal citizenship. Accordingly, amici have a strong interest in ensuring the proper and constitutional interpretation of ICWA as legislation protecting Tribal citizenship.

October 5, 2012

Confederated Tribes of Grand Ronde Cmty. of Oregon v. Salazar, CIV.A. 11-284 RWR, 2012 WL 3757655 (D.D.C.),
Brief of United South and Eastern Tribes, Inc. and Jamestown S’klallam Tribe as Amici Curiae in Opposition to Plaintiff’s Motion for Summary Judgment and in Support of Defendants’ Cross-Motion for Summary Judgment

AMICUS BRIEF

USET Cowlitz Amicus Brief accepted by court for review

For the amici, the reacquisition and rebuilding of their homelands is of critical importance for achieving their goal of economic self-sufficiency as self-governing entities. The revenues generated from economic development enterprises on trust and reservation lands provide each Tribal Nation with the ability to strengthen its Tribal government, improve the quality of life of its members and provide capital for other economic development and investment opportunities.

January 27, 2012

National Federation of Independent Business v. Sebelius, 2012 WL 293713 (U.S.)

AMICUS BRIEF

The 449 Tribal Nations across the nation who are amici or members of amici Tribal organizations represented on this brief are direct beneficiaries of several Indian-specific provisions included in the Patient Protection and Affordable Care Act (“Act” or “ACA”)2 that have a purpose and genesis separate and distinct from the minimum coverage provision that the Eleventh Circuit Court of Appeals declared unconstitutional but severable from remaining provisions of the Act.3 The Indian-specific provisions of the ACA are legally separable from the remainder of the Act, because they solely relate to the Federal responsibility to provide health care to Indian Tribal Nations and their members, and are of critical importance to the delivery of health care services to Indian Tribal Nations and their citizens throughout the country.

April 7, 2011

State of Florida, By and Through Attorney General Pam Bondi, Et Al, Plaintiffs-Appellees, V. United States Department of Health and Human Services, et al, Defendants-Appellants., 2011 WL 1461594 (C.A.11)
Brief of Amici of the NIHB et al in Support of Appellants and for Reversal of the decision Below

AMICUS BRIEF

The close to 350 Tribal Nations across the nation who are amici or members of amici Tribal organizations represented on this brief are directly affected by the district court’s decision to invalidate the Patient Protection and Affordable Care Act (“Acf or “ACA”) in its entirety, including several Indian-specific provisions that have a separate purpose and genesis from the individual mandate declared unconstitutional by the court. These Indian-specific provisions are legally separable from the remainder of the Act, are related solely to the Federal responsibility to provide health care to Indian Tribal Nations and their members and are of critical importance to the delivery of health care services to Indian Tribal Nations and their citizens throughout the country. If this Court reaches the question of severability, the amici have a strong interest in ensuring that the analysis includes a thoughtful consideration of the severability rules as applied to these separate and separable Indian-specific provisions of the Act.

Case: Herrera v. Wyoming

Date: May 20, 2019

Summary:

Holding: Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
Judgment: Vacated and remanded, 5-4, in an opinion by Justice Sotomayor on May 20, 2019. Justice Alito filed a dissenting opinion, in which Chief Justice Roberts and Justices Thomas and Kavanaugh joined.

Case: Washington State Department of Licensing v. Cougar Den, Inc.

Date: March 19, 2019

Summary:

Holding: The Supreme Court of Washington’s judgment — that the “right to travel” provision of the 1855 Treaty Between the United States and the Yakama Nation of Indians pre-empts the state’s fuel tax as applied to Cougar Den’s importation of fuel by public highway for sale within the reservation — is affirmed.
Judgment: Affirmed, 5-4, in an opinion by Justice Breyer on March 19, 2019. Justice Breyer announced the judgment of the court and delivered an opinion, in which Justices Sotomayor and Kagan joined. Justice Gorsuch filed an opinion concurring in the judgment, in which Justice Ginsburg joined. Chief Justice Roberts filed a dissenting opinion, in which Justices Thomas, Alito, and Kavanaugh joined. Justice Kavanaugh filed a dissenting opinion, in which Justice Thomas joined.

Case: Washington v. U.S.

Date: June 11, 2018

Summary:

Issues: (1) Whether a treaty “right of taking fish, at all usual and accustomed grounds and stations … in common with all citizens” guaranteed “that the number of fish would always be sufficient to provide a ‘moderate living’ to the tribes”; (2) whether the district court erred in dismissing the state’s equitable defenses against the federal government where the federal government signed these treaties in the 1850’s, for decades told the state to design culverts a particular way, and then filed suit in 2001 claiming that the culvert design it provided violates the treaties it signed; and (3) whether the district court’s injunction violates federalism and comity principles by requiring Washington to replace hundreds of culverts, at a cost of several billion dollars, when many of the replacements will have no impact on salmon, and plaintiffs showed no clear connection between culvert replacement and tribal fisheries.
Judgment: Affirmed by an equally divided court in a per curiam opinion on June 11, 2018.

Case: Upper Skagit Indian Tribe v. Lundgren

Date: May 21, 2019

Summary:

Holding: County of Yakima v. Confederated Tribes and Bands of Yakima Nation, 502 U. S. 251, addressed only a question of statutory interpretation of the Indian General Allotment Act of 1887, not the question whether Indian tribes have sovereign immunity in in rem lawsuits. The Lundgrens now ask the Supreme Court to affirm on an alternative, common-law ground: that the tribe cannot assert sovereign immunity because this suit relates to immovable property located in Washington state, purchased by the tribe in the same manner as a private individual. Because this alternative argument did not emerge until late in this case, the Washington Supreme Court should address it in the first instance.
Judgment: Vacated and remanded, 7-2, in an opinion by Justice Gorsuch on May 21, 2018. Chief Justice Roberts filed a concurring opinion, in which Justice Kennedy joined. Justice Thomas filed a dissenting opinion, in which Justice Alito joined.

Case: Patchak v. Zinke

Date: February 27, 2018

Summary:

Holding: David Patchak filed suit challenging the authority of the secretary of the Interior Department to take into trust a property (Bradley Property) on which Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians wished to build a casino. In an earlier appeal in the case, the Supreme Court held that the secretary lacked sovereign immunity and that Patchak had standing, and it remanded the case for further proceedings. Congress subsequently enacted the Gun Lake Act, which “reaffirmed as trust land” the Bradley Property, Section 2(a), and provided that “an action . . . relating to [that] land shall not be filed or maintained in a Federal court and shall be promptly dismissed,” Section 2(b). The court of appeals properly affirmed the district court’s dismissal of Patchak’s lawsuit pursuant to that statute.
Judgment: Affirmed, 6-3, in an opinion by Justice Thomas on February 27, 2018. Justice Thomas, joined by Justices Breyer, Alito and Kagan, concluded that Section 2(b) of the Gun Lake Act does not violate Article III of the Constitution. Justice Breyer filed a concurring opinion. Justice Ginsburg filed an opinion concurring in the judgment, in which Justice Sotomayor joined, concluding that Congress acted effectively to displace the Administrative Procedure Act’s waiver of immunity for suits against the United States — which enabled Patchak to launch this litigation — with a contrary command applicable to the Bradley Property. Justice Sotomayor filed an opinion concurring in the judgment, concluding that that Section 2(b) of the Gun Lake Act is most naturally read as having restored the Federal Government’s sovereign immunity from Patchak’s suit challenging the trust status of the Bradley Property. Chief Justice Roberts filed a dissenting opinion, in which Justices Kennedy and Gorsuch joined.

Case: Upstate Citizens for Equality, Inc. v U.S.

Date: November 27, 2017

Summary:

Issues: (1) Whether, in the exercise of its Article I powers, Congress can infringe, reduce or diminish the territorial integrity of a state without its prior consent; (2) whether Congress possesses plenary power over Indian affairs and, if so, whether the plenary power expands the Indian commerce clause to authorize the displacement of state rights to territorial integrity; (3) whether the land acquisition in this case via the mechanism of 25 U.S.C. § 465 (now 25 U.S.C. § 5108) represents a violation of the limits inherently expressed in the Indian commerce clause that limits Congress’ power to “regulate” “commerce”; and (4) whether the 300,000-acre ancient Oneida Indian reservation in New York still exists.
Petition DENIED Justice Thomas, dissenting from the denials of certiorari.

Case: Matal v. Tam

Date: June 19, 2017

Summary:

Holding: The disparagement clause of the Lanham Act violates the First Amendment’s free speech clause.
Judgment: Affirmed, 8-0, in an opinion by Justice Alito on June 19, 2017. Justice Alito announced the judgment of the Supreme Court and delivered the opinion of the Supreme Court with respect to Parts I, II and III-A, in which all the justices joined except that Justice Thomas did not join Part II; Justice Alito also delivered an opinion with respect to Parts III-B, III-C and IV, in which Chief Justice Roberts and Justices Thomas and Breyer joined. Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justices Ginsburg, Sotomayor and Kagan joined. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Gorsuch took no part in the consideration or decision of the case.

Case: Lewis v. Clarke

Date: April 25, 2017

Summary:

Holding: (1) In a suit brought against a Tribal employee in his individual capacity, the employee, not the Tribal Nation, is the real party in interest and the tribe’ sovereign immunity is not implicated; and (2) an indemnification provision cannot, as a matter of law, extend sovereign immunity to individual employees who would otherwise not be protected.
Judgment: Reversed and remanded, 8-0, in an opinion by Justice Sotomayor on April 25, 2017. Justices Thomas and Ginsburg filed opinions concurring in the judgment. Justice Gorsuch took no part in the consideration or decision of the case.

Case: Dollar General Corp. v. Mississippi Band of Choctaw Indians

Date: June 23, 2016

Summary:

Issue: Whether Indian Tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a Tribal Nation or its members. CVSG: 5/12/2015.
Judgment: Affirmed by an equally divided Court in a per curiam opinion on June 23, 2016.

Case: U.S. v. Bryant

Date: June 13, 2016

Summary:

Holding: The use of Tribal-court convictions as predicate offenses in a subsequent prosecution does not violate the Constitution when the Tribal-court convictions occurred in proceedings that complied with the Indian Civil Rights Act of 1968 and were therefore valid when entered.
Judgment: Reversed and remanded, 8-0, in an opinion by Justice Ginsburg on June 13, 2016. Justice Thomas filed a concurring opinion.

Case: Nebraska v. Parker

Date: March 22, 2016

Summary:

Holding: An 1882 law that authorized the Secretary of the Interior to survey, appraise, and sell roughly 50,000 acres of reservation land did not diminish the Omaha Indian Reservation.
Judgment: Affirmed, 8-0, in an opinion by Justice Thomas on March 22, 2016.

Case: Sturgeon v. Frost

Date: March 22, 2016

Summary:

Holding: The Ninth Circuit’s interpretation of Section 103(c) of the Alaska National Interest Lands Conservation Act, which addresses the scope of the National Park Service’s authority over lands within the boundaries of conservation system units in Alaska, to ban hovercrafts on state-owned waters flowing through federally managed preservation areas, is inconsistent with both the act’s text and context.
Judgment: Vacated and remanded, 8-0, in an opinion by Chief Justice Roberts on March 22, 2016.

Case: Menominee Indian Tribe of Wisconsin v. U.S.

Date: January 25, 2016

Summary:

Holding: Equitable tolling is not available to preserve contract claims that were not timely presented to a federal contracting officer because there were no extraordinary circumstances beyond the tribe’s control: the tribe had unilateral authority to present its claims in a timely manner, and its claimed obstacles – a mistaken reliance on a putative class action and a belief that presentment was futile – were not outside the tribe’s control.
Judgment: Affirmed, 9-0, in an opinion by Justice Alito on January 25, 2016.

Case: Knight v. Thompson

Date: January 26, 2015

Summary:

GVR stands for “grant vacate remand.” It usually means, as I believe it does here, that the Supreme Court has decided a matter that will affect the disposition of another matter pending before the Court at the time. Here, the Court granted cert to review Holt v. Hobbs. and decided that matter last week. Also pending was a cert petition in Knight v. Thompson involving a challenge by a Native prisoner to his warden’s order to cut his hair. The Court held the Native petition while it decided the other petition, which involved a Muslim man’s challenge to his warden’s order to shave his beard. Now the Knight case will return to the Eleventh Circuit where the court will review the case in light of the decision in Holt.

https://turtletalk.blog/2015/01/26/scotus-gvrs-knight-v-thompson-a-native-prisoner-matter-in-light-of-holt-v-hobbs/

Case: Michigan v. Bay Mills Indian Community

Date: May 27, 2014

Summary:

Holding: Michigan’s suit against the Bay Mills Indian Community to enjoin the tribe from operating a gaming facility on non-Indian lands is barred by tribal sovereign immunity.
Judgment: Affirmed and remanded, 5-4, in an opinion by Justice Kagan on May 27, 2014. Justice Sotomayor filed a concurring opinion. Justice Scalia filed a dissenting opinion. Justice Thomas filed a dissenting opinion, in which Justice Scalia, Justice Ginsburg, and Justice Alito joined. Justice Ginsburg filed a dissenting opinion.

Case: Adoptive Couple v. Baby Girl

Date: June 25, 2013

Summary:

Holding: Assuming for the sake of argument that the biological father in this case is a “parent” for purposes of the Indian Child Welfare Act, the act still does not bar termination of the biological father’s paternal rights.
Judgment: Reversed and remanded, 5-4, in an opinion by Justice Alito on June 25, 2013. Justice Breyer and Justice Thomas filed concurring opinions. Justice Scalia filed a dissenting opinion. Justice Sotomayor filed a dissenting opinion in which Justice Ginsburg and Justice Kagan joined, and in which Justice Scalia joined in part.

Case: U.S. v. Samish Indian Nation

Date: October 9, 2012

Summary:

Issue: (1) Whether the Tucker Act, 28 U.S.C. § 1491(a)(1), or Indian Tucker Act, 28 U.S.C. § 1505, grants the Court of Federal Claims subject-matter jurisdiction over an Indian tribe’s claim for money damages against the United States, based on the United States’ purported violation of sources of law that do not themselves mandate a damages remedy for their violation; and (2) whether the United States may be required to pay damages for failing to provide an Indian tribe with a statutorily defined portion of a statutory fund, where Congress enacted limited appropriations for that fund and those appropriations were exhausted over a decade before the tribe filed its action for money damages.
Judgment: The case is granted, the judgment with respect to all matters relating to respondent’s Revenue Sharing Act claim is vacated, and the case is remanded to the United States Court of Appeals for the Federal Circuit with instructions to dismiss that claim as moot (see United States v. Munsingwear, Inc.) on October 9, 2012.

Case: Artic Slope Native Ass’n, Ltd. v. Sebelius

Date: June 25, 2012

Summary:

As we guessed earlier, in light of Salazar v. Ramah Navajo Chapter, the Supreme Court GVR’d Arctic Slope v. Sebelius this morning. The case returns to the Federal Circuit for further consideration.
https://turtletalk.blog/2012/06/25/arctic-slope-native-assn-v-sebelius-granted-vacated-and-remanded-gvr/

Case: Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

Date: June 18, 2012

Summary:

Holding: The federal government has waived its sovereign immunity from the respondent’s suit under the Administrative Procedure Act, in which he alleges that Section 465 of the Indian Reorganization Act did not authorize the Secretary of the Interior to acquire into trust property that the Band intended to use for “gaming purposes” because the Band was not a federally recognized tribe when the Indian Reorganization Act was enacted in 1934. Moreover, the respondent has prudential standing to challenge the Secretary’s acquisition of the land in question.

Plain English Summary: In this case, the federal government took certain land into trust for an Indian Tribal Nation, which means that it took ownership of the land to allow the Tribal Nation to use it. The Tribal Nation planned to build a casino on the land. The Supreme Court held that a neighbor could sue the government to stop the casino project on the ground that the law did not permit the government to take the land into trust for this particular Tribal Nation.
Judgment: Affirmed, 8-1, in an opinion by Justice Kagan on June 18, 2012. Justice Sotomayor filed a dissenting opinion.

Case: Salazar v. Ramah Navajo Chapter

Date: June 18, 2012

Summary:

Holding: The federal government must pay in full each tribe’s contract support costs incurred by a tribal contractor under the Indian Self-Determination and Education Assistance Act, 25 U.S.C. § 450, even if Congress has failed to appropriate sufficient funds to cover all of the contract support costs owed to all tribal contractors collectively.

Plain English Summary: Every contract is a deal between two parties, and both are supposed to perform their part of the deal. That means that, if the job covered by the contract is done as it should be, then that party is entitled to be paid what has been promised. This case involved Indian tribes that sued the government because it did not pay all of the costs it had promised to cover when the two sides made their deal for the tribe to provide education and other government-like functions for their members. The Court ruled that a promise is a promise, even if the government doesn’t have immediately available enough money to pay all of the contractors it had promised to pay for their services. Congress has to locate the money to cover such a promise, the Court said.
Judgment: Affirmed, 5-4, in an opinion by Justice Sotomayor on June 18, 2012. The Chief Justice filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Alito joined.

Case: U.S. v. Jicarilla Apache Nations

Date: June 13, 2011

Summary:

Holding: The fiduciary exception to the attorney-client privilege does not apply to the general trust relationship between the United States and the Native American tribes. (Kagan, J., recused.)

Plain English Holding: In litigation with Native American tribes over the management of money that the government holds on behalf of the tribes, the federal government can refuse to turn over documents relating to communications between the government and its attorneys relating to the money and its management.
Judgment: Reversed and remanded, 7-1, in an opinion by Justice Samuel Alito on June 13, 2011. Justice Ginsburg filed an opinion concurring in the judgment, which Justice Breyer joined. Justice Sotomayor filed a dissenting opinion. (Kagan, J., recused.)

Case: U.S. v. Eastern Shawnee Tribe of Oklahoma

Date: May 2, 2011

Summary:

Opinion

On petition for writ of certiorari to the United States Court of Appeals for the Federal Circuit. Petition for writ of certiorari granted. Judgment vacated, and case remanded to the United States Court of Appeals for the Federal Circuit for further consideration in light of United States v. Tohono O’odham Nation, 563 U.S. ––––, 131 S.Ct. 1723, 179 L.Ed.2d 723 (2011). Westlaw

Case: U.S. v. Tohono O’Odham Nation

Date: April 26, 2011

Summary:

Holding: Two suits making the same claim are barred from the Court of Federal Claims if they are based on substantially the same operative facts, regardless of the relief each seeks.(Kagan, J., recused).

Plain English Holding: Plaintiffs may not bring a suit in the Court of Federal Claims if they have already brought a suit based on the same set of facts in another court, even if they ask for different relief in the two cases.
Judgment: Reversed, 7-1, in an opinion by Justice Kennedy on April 26, 2011. Justice Ginsburg dissented alone. Justice Sotomayor joined in the judgment only, joined by Justice Breyer. (Kagan, J., recused).

Case: Madison County, N.Y. v. Oneida Indian Nation of New York

Date: January 10, 2011

Summary:

We granted certiorari, 562 U. S. ___ (2010), on the questions “whether tribal sovereign immunity from suit, to the extent it should continue to be recognized, bars taxing authorities from foreclosing to collect lawfully imposed property taxes” and “whether the ancient Oneida reservation in New York was disestablished or diminished.” Pet. for Cert. i. Counsel for respondent Oneida Indian Nation advised the Court through a letter on November 30, 2010, that the Nation had, on November 29, 2010, passed a tribal declaration and ordinance waiving “its sovereign immunity to enforcement of real property taxation through foreclosure by state, county and local governments within and throughout the United States.” Oneida Indian Nation, Ordinance No. O-10-1 (2010). Petitioners Madison and Oneida Counties responded in a December 1, 2010 letter, questioning the validity, scope, and permanence of that waiver; the Nation addressed those concerns in a December 2, 2010 letter.

We vacate the judgment and remand the case to the United States Court of Appeals for the Second Circuit. That court should address, in the first instance, whether to revisit its ruling on sovereign immunity in light of this new factual development, and — if necessary — proceed to address other questions in the case consistent with its sovereign immunity ruling. See Kiyemba v. Obama, 559 U. S. ___ (2010) (per curiam).
https://www.bloomberglaw.com/public/desktop/document/Madison_County_v_Oneida_Indian_Nation_of_New_York_131_S_Ct_704_17?1559076324

Case: U.S. v. Navajo Nation

Date: April 6, 2009

Summary:

Issue: Whether the Courts prior decision in United States v. Navajo Nation (2003) foreclosed a finding that the government breached fiduciary duties in connection with Indian coal lease amendments.
Judgment: Reversed and remanded, 9-0, in an opinion by Justice Antonin Scalia on April 6, 2009.

Case: Hawaii v. Office of Hawaiian Affairs

Date: March 31, 2009

Summary:

Issue: Whether a 1993 congressional resolution requires Hawaii to reach a political settlement with native Hawaiians before transferring some 1.2 million acres of state land.
Judgment: Reversed and remanded, 9-0, in an opinion by Justice Samuel Alito on March 31, 2009.

Case: Carcieri v. Salazar

Date: February 24, 2009

Summary:

Issue: Whether the Narragansett Tribe may receive benefits under the Indian Reorganization Act of 1934 if the Tribe was not federally recognized on the date of enactment, and whether the Rhode Island Indian Claims Settlement Act foreclosed the Tribe’s right to exercise sovereignty over land in the state.
Judgment: Reversed, 6-3, in an opinion by Justice Clarence Thomas on February 24, 2009.