Matthew Fletcher’s Turtle Talk legal blog has posted a preview of the Indian law cases that will come before the U.S. Supreme Court for selection this term. “The ‘long conference’ is next Monday, and so the 2011 term is under way,” Fletcher wrote on his blog.
At the top of his list for the long conference is Oneida Indian Nation v. Oneida County (No. 10-1420) and United States v. New York (10-1404). The petition involves the Oneida Nation’s land claims and the Supreme Court’s Sherrill v Oneida ruling. The Nation’s original lawsuit was filed against New York State’s Madison and Oneida counties in 1974 and claimed 250,000 acres of ancestral lands and relief going back more than 200 years when the lands were conveyed in multiple transactions to the state of New York. The transactions were illegal under the 1790 Indian Trade and Intercourse Act, commonly referred to as the Nonintercourse Act, which prohibits Indian lands from being sold or otherwise transferred without the approval of Congress.
The case reached the 2nd Circuit last August, where a panel of judges issued a majority ruling that the nation has no “possessory right” to reclaim the 250,000 acres taken by the state of New York (and sold for profit) nor does it have a “non-possessory right” to claim restitution, estimated by the Oneidas to be at least $500 million. The nation asked for a rehearing of the case, but was denied in December. The petition for a writ of certiorari—a document asking the Supreme Court to review the decision of a lower court—was filed in mid-May. In addition to the Oneida Indian Nation and the United States, the plaintiffs include the Oneida Tribe of Indians of Wisconsin and the Oneida of the Thames.
The petition for cert presents two questions to the high court:
- Whether the 2nd Circuit Court of Appeals contravened the U.S. Supreme Court’s decisions in Oneida Indian Nation of New York v. County of Oneida, and City of Sherrill v. Oneida Indian Nation of New York by ruling that “equitable considerations” rendered the nation’s claims for money damages void;
- Whether the court of appeals impermissibly encroached on the legislative power of Congress by relying on “equitable considerations” to bar the nation’s claims as untimely even though they were brought within the statute of limitations fixed by Congress for the precise tribal-land claims at issue here.
“The fact that the federal government filed a petition is huge, but the Court has denied similar petitions,” Fletcher noted.
Also slated for the long conference is Navajo Nation v. Equal Employment Opportunity Commission (EEOC) (No. 10-981) and Peabody Western Coal Co. v. EEOC (No. 10-986), along with EEOC v. Peabody Western Coal Co. (No. 10-1080), “a conditional cross-petition,” Fletcher wrote. This case is also long running and involves the Navajo tribal employment preference act. The EEOC sued Peabody in 2001, alleging that Peabody’s compliance with provisions of two coal leases with the Navajo Nation requiring Peabody to employ qualified Navajo workers violates Title VII of the Civil Rights Act which prohibits employment discrimination based on race, color, religion, sex and national origin. The leases were drafted, negotiated and approved under the personal supervision of the Secretary of the Interior, but Title VII doesn’t allow EEOC to sue the Department of the Interior or the Navajo Nation, reserving that authority to the Attorney General.
This complicated case was dismissed twice by the District Court which held that the EEOC’s action couldn’t go forward without the Navajo Nation or Interior Secretary, neither of which the EEOC could sue. The Ninth Circuit Court reversed both judgments saying that the EEOC could sue the Navajo Nation under Rule 19 of the Federal Rules of Procedures as long as it didn’t look for “affirmative relief” from the Nation, and that either the Nation or Peabody could sue the Interior Secretary under the Administrative Procedures Act.
The question asked of the Supreme Court is:
- “Whether the Secretary of the Interior is a ‘required party,’ within the meaning of Rule 19(a)(1) of the Federal Rules of Civil Procedure, to an action by the Equal Employment Opportunity Commission against a private employer, where the challenged conduct was undertaken pursuant to a federally approved mining lease between the employer and an Indian Tribe, but no federal agency is a party to the lease.”
The case is rooted in the post-World War II era when, partly in recognition of Navajo soldiers and Code-Talkers, Congress provided for Navajo and Hopi employment preferences in the Navajo and Hopi Rehabilitation Act of 1950.
“Although labeled a petition to watch, the feds are opposing the main petitions, and this one will be denied,” Fletcher predicted.
Several petitions are slated for later conferences, including Salazar v. Patchak (No. 11-247) and Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak (No. 11-246). The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, known as the Gun Lake Tribe, and the federal government have petitioned the U.S. Supreme Court to review a ruling issued by the D.C. Circuit Court of Appeals last January that said David Patchak, a former trustee in Wayland County, Michigan, has standing to bring a lawsuit against the Interior Department for taking into trust 147 acres near Grand Rapids where the tribe operates its casino. The ruling reversed a decision by the Washington federal district court that said Patchak did not have standing and was barred from filing the complaint by the Quiet Title Act (QTA), which says the federal government cannot be divested of title to Indian trust lands. The appeals court expanded the previous criteria for “standing”—the right to initiate a lawsuit—which basically requires someone to be injured or affected by an action by granting Patchak prudential standing. The appeals court ruling was a departure from rulings in similar cases from four other circuit courts.
The high court petitions evolved from a lower court case involving the Supreme Court’s ruling in Carcieri v. Salazar.
The questions presented to the Supreme Court by Gun Lake are:
- “I. Whether the Quiet Title Act and its reservation of the United States’ sovereign immunity in suits involving ‘trust or restricted Indian lands’ apply to all suits concerning land in which the United States ‘claims an interest” … as the Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether they apply only when the plaintiff claims title to the land, as the D.C. Circuit held.
- II. Whether prudential standing to sue under federal law can be based on either (i) the plaintiff’s ability to ‘police’ an agency’s compliance with the law, as held by the D.C. Circuit but rejected by the Fifth, Sixth, Seventh, and Eighth Circuits, or (ii) interests protected by a different federal statute than the one on which suit is based, as held by the D.C. Circuit but rejected by the Federal Circuit.”
“This one has already been slated a ‘petition to watch,’” Fletcher wrote. "The federal government's effort to protect federal immunity under the Quiet Title Act is almost certain to be granted.”.
Other petitions the court will consider are:
- Arctic Slope Native Assn. v. Sebelius (No. 11-33). “This petition involving contract support costs under the Indian Self-Determination Act has a strong chance, with a circuit split between the Federal Circuit (here) and the Tenth Circuit (here and perhaps here),” Fletcher wrote.
- Gila River Indian Community v. Lyon (No. 11-80). “Like the EEOC case, a Rule 19 case. One of these days, the Supreme Court will hear a Rule 19 case where an Indian tribe is the missing indispensable party,” Fletcher said.
- Seneca Telephone v. Miami Tribe (No. 11-183). “Any case with tribal sovereign immunity as the backdrop has a chance, but this one has no split and no real major issue.”
- Reed v. Gutierrez (No. 10-1390). “Another immunity case, even less likely to be granted than Seneca Telephone, given that Kiowa completely controls this one without doubt.”
- Corboy v. Louie (No. 11-336). Any petition involving the Native Hawaiians is bound to attract some Justices' attention, but this one is being brought by tax protesters, not a favored party in the Supreme Court.
Evans v. Wapato Heritage (No. 11-215).