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Native American Issues & The United States Supreme Court

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Decision 06/25/01:State of Nevada v. Hicks, Floyd, et. al

Impact:Tribal JurisdictionImmunity of the State

Argued 3/21/01 Does Nevada's sovereign immunity, or the qualified immunity of its officers, prevent tribal court jurisdiction in actions stating tort and constitutional claims against individually-named state officials for official actions sanctioned by a tribal judge?

Floyd Hicks, a member of the Fallon Paiute -Shoshone tribe in Nevada, resided on the reservation when State of Nevada game wardens from the Nevada Department of Wildlife (NDW) secured search warrants from the Fallon Tribal Court on two separate occasions to search Hicks' residence. They did so on suspicion that Hicks had hunted and killed bighorn sheep of the California subspecies, a protected animal, off the reservation. Hicks, in fact had not, but he did have two trophies of a similar animal received as a gift and displayed in his home. No charges were made against Hicks. However, Hicks claimed the officials not only damaged his property, but had bullied him, denied him due process and equal protection, and charged unreasonable search and seizure. Hicks filed suit against the state's wardens and the Director of the NDW in tribal court, both in their individual and official capacities. The defendants stated however that they acted as state officials and could not be sued based on state's immunity. They charged that tribal courts had no jurisdiction in the matter. The Tribal Court held that it had jurisdiction over the claims. When the state and its officials filed an action in federal district court seeking a declaratory judgment against Tribal jurisdiction, that court granted summary judgment to respondent and required the state and its officials to exhaust all claims to qualified immunity in the Tribal court. Further, the 9th Circuit Court of Appeals (196 F.3d 1020) affirmed that tribal sovereignty allowed the tribal court to regulate and hence adjudicate behavior of state officials present on its land.

The USSC dealt with the issue of primary importance, and so ruled that the Tribal Court can only adjudicate crimes within the sphere of its legislative control (the reservation), and has "no jurisdiction over state officers pursuing off-reservation violations of state law". Because of the tribal court's inability to regulate the investigation of off-reservation violations by state officials, they lacked jurisdiction to hear the case against the state officials. Rather, state officials investigating off-reservation violations of state law are accountable for alleged violations in either state or federal court. The case was remanded for further proceedings.

Decision: 6/18/01State of Idaho v. United States

Impact:Land rightsReservation lands

Argued 4/23/01 Does title to certain land in Idaho belong to an Indian reservation through an implied act of Congress granting Indian rights to the land by an executive order issued prior to Idaho statehood, even though such order was not acted upon until one year after Idaho became a state in l890?

The Supreme Court upheld the spirit of congressional intent 100 years ago along with lower court decisions when it ruled that the Coeur d'Alene Tribe may include 5,200 acres of the southern portion of Lake Coeur d'Alene in its reservation landholdings. Congress initially granted reservation lands to the tribe by executive orders issued in l887 and l889, but approved in l891 after Idaho had set its borders and become a state. Idaho's constitution, the state believed, grants it rights to all lands owned by Indian tribes based on an "Equal Footing Doctrine". A Federal District Court and the 9th Circuit Court of Appeals disagreed with the state. They found that throughout the process of writing, and later approving, the executive orders that carved out the borders of the tribal lands, Congress' intentions were clearly in support of setting such land aside for reservation use. Both courts upheld the original boundaries of the reservation, although neither court affirmed a request by the tribe for additional land. The state of Idaho petitioned the US Supreme Court for certiorari, arguing that Congress may not have intended "exclusive use" by the tribe, using the benefits to the state that such lands, which include a large lake, could have in an arid land with little navigable water.

Decision 5/29/01:Atkinson Trading Post v. Joe Shirley, et. al. (Docket 00-0454)

Impact:Taxation Authority, Sovereignty

US Supreme Court reversed the decision of the 10th Circuit Court of Appeals, claiming that court had misinterpreted Montana v. State (450 U.S. 544: decided in 1981) in rendering their decision to uphold Navajo taxing authority. The Appeals court had cited Buster v. Wright (135 F. 947: decided in 1905) which gave "no exemption from the laws" of an Indian nation, including taxation, to purchasers of land within a reservation. The USSC held that Montana v. State superceded in the matter, as it directly held that Indian tribes lack jurisdiction over non-Indians conducting activities on non-Indian land. The USSC reasoned: 1) Atkinson Trading Post was not on Indian fee land but on private, non-Indian land; hence it followed Montana's precedent of no jurisdiction ruling (not Buster v. Wright), unless the Navajo Nation could prove one of two exceptions cited in Montana existed. 2) Neither exception could be proved, namely that the Navajo nation had no consensual relationship with the Atkinson Trading Post hotel customers, nor did this situation threaten the political or economic security of the Nation, its welfare or health. Reversed all earlier decisions favoring tax authority in this matter by: 10th Federal Circuit Court of Appeals, U.S. District Court for the District of New Mexico, Navajo Supreme Court and Navajo Tax Commission.

Decision 4/30/01:C&L Enterprises, Inc. v. Citizen Band Potawatomi Indian Tribe of OK (00-0292)

Impact:Tribal Immunity, Sovereignty , Arbitration Waiver Clause

US Supreme Court unanimously held that the Potawatomi tribe waived immunity when they entered a contractual agreement with C&L Enterprises, Inc. containing the following arbitration clause: "The award rendered by the arbitrator shall be final, and judgment may be entered upon it in accordance with applicable law in any court having jurisdiction thereof?" In 1993, the Tribe entered into a contract with C & L to construct a foam roof on an off-reservation site. Seven months later, the Tribe changed the job specifications and asked C&L to bid again. When C&L lost the job to a lower bidder, they sued the Tribe for losses due to breach of contract. The suit was arbitrated and C&L awarded damages, attorney and arbitration fees. C&L went to court to enforce the award. The Tribe claimed protection from tort by sovereign immunity. The Oklahoma District Court, appellate and state supreme courts ruled in favor of C&L, but the Tribe insisted they had no jurisdiction. In 1998, the US Supreme Court sent the case back to the state to rehear the case, bearing in mind the USSC decision rendered in a similar case in May 1998, Kiowa Tribe of Oklahoma v. Manufacturing Technologies (523 U.S. 751). That case held an Indian tribe not subject to tort even for breach of contract unless "Congress has authorized the suit or the tribe has waived its immunity." The current decision of the USSC in April 2001 ruled that the tribe consented to arbitration by and to enforcement of arbitration awards based upon the arbitration clause signed by the tribe, which indeed waived immunity.

Upheld earlier decisions that tribe waived immunity given by state of Oklahoma district and appellate courts.

Decision 3/5/01:Dept. of Interior v. Klamath Water Users (99-1871)

Impact:Freedom of Information Intra-Agency Disclosure Exemption

US Supreme Court upheld a Federal Court of Appeals ruling that confidential tribal documents addressing tribal interests (water allocations) shared with the USDOI are not Freedom of Information Act exempt under Exemption 5 (set aside for "intra-agency" documents otherwise held as privileged documents in civil discovery). Klamath Water Users Protective Association filed a series of requests with the DOI's Bureau of Indian Affairs under the FOIA seeking access to communications regarding Klamath River Basin tribal claims for water rights. The Klamath Water Users compete with tribes for water use in the Basin. The DOI/BIA denied turning over a portion of tribal documents citing Exemption 5 of the FOIA, in particular documents regarding claims filed by the BIA in an Oregon state court for adjudication intended to allocate water rights. Klamath Water Users filed suit to compel the BIA to release all documents. The USSC based its decision on the following: 1) Documents resulting from tribal consultations are not exempt because tribes have a direct interest in the subject matter; 2) Documents involved directly in adjudication, the BIA is not the tribe's attorney and has no exemption rights under the attorney work product and deliberative process privileges incorporated in Exemption 5; 3) The USSC ruled that "inter-agency" and "intra-agency" can not apply to tribes as they are not government agencies; 4) Further, it ruled that the spirit of the FOIA law is disclosure, not concealment, and therefore the DOI and its agencies must act always to serve the FOIA mandate as broadly as possible.

Reversed an earlier decision by the District Court granting the Government summary judgment, and upheld an appellate decision by the Ninth Circuit Court.

Petitions for Certiorari Granted (2 Cases)


Petition filed 1/10/01United States v. Little Six Inc. (00-1115)

Impact:Indian Gaming, Taxation

Petition filed 4/9/01Pezold, Richey, Caruso & Barker v. Cherokee (00-1552)

Impact: Sovereign Immunity, Taxation

Petitions for Certiorari Denied (17 cases)


Certiorari denied 10/02/00Tribal Governing Board of Lac Courte Oreilles Band of Lake Superior Chippewa Indians v. Thomas Docket (99-1520)

Impact: IRA Elections, FRCP 19

Certiorari denied 10/02/00Great Western Casinos Inc. v. Morongo Band of Mission Indians (99-1756)

Impact: Sovereign Immunity, Indian Gaming, Gaming Fraud

Certiorari denied 10/02/00 Ysleta Del Sur Pueblo v. The El Paso Key County Water Improvement District #1 (00-54)

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Impact: State Immunity

U.S. Constitution 11th Amendment

Certiorari denied 10/02/00Anderson v. Niagara Mohawk Power Corp. (00-73)

Impact: State Court JurisdictionU.S. Constitution 5th and 14th Amendments

Certiorari denied 1/16/01 Ware v. Kiowa Tribe of Oklahoma Housing Authority (00-586)

Impact:State Court JurisdictionSovereignty

Certiorari denied 2/20/01Sac and Fox Nation of Missouri v. Pierce (No. 00-599)

Impact:Taxation , State Immunity, Tribal Jurisdiction, State Jurisdiction

Certiorari denied 02/02/01 Pierce v. Sac and Fox Nation of Missouri (00-556)

Impact: State Taxation & Immunity Tribal Standing to Challenge State Tax

Certiorari denied: 2/26/01South Fork Band of Te-Moak Tribe of Western Shoshone Indians of Nevada v. 6th Judicial District Court of NV (00-838)

Impact: Water Rights, Immunity

Certiorari denied: 3/26/01 Karuk Tribe of California v. US (00-1012)

Impact: Eminent Domain, Compensation

Certiorari denied 4/2/01Manybeads v. US (00-886)

Impact: Tribal Immunity

Certiorari denied 4/2/01Hardin v. Agua Caliente Band of Cahuilla Indians Docket (00-1233)

Impact: State Tax 11th Amendment

Certiorari denied 4/16/01Michigan v. EPA (00-746)

Impact: Environmental Regulation, Tribal Sovereignty, Trust, Reservation Land Owned by non-Indians

Certiorari denied 4/30/01Connecticut ex rel. Blumenthal v. U.S. (00-1032)

Impact: Indian Reorganization Act, DOI Connecticut Indian Land Claims Settlement Act, Trust Lands

Certiorari denied 5/14/01Shoshone-Bannock Tribes v. US (00-1262)

Impact: Consent Decree, Resource Conservation and Recovery Act

Certiorari Denied 5/14/01Cermak v. Norton (00-1433)

Certiorari Denied 6/4/01Ysleta del Sur Pueblo v. Texas (00-1413)

Impact: Gaming, Sovereign Immunity

Certiorari denied 6/17/01San Juan School District Board of Education v. Sinajini (00-1596)

Impact: Education Equality, Consent Decree

Special Orders

Alaska v. United States, (00-128)

Motion for Alaska to file amended complaint Granted 01/08/01

Impact: Submerged Lands and Wetlands