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The Rise of Tribes and the Fall of Federal Indian Law
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Supreme Court takes action on Indian law cases
Tuesday, November 2, 2004

The U.S. Supreme Court refused another Indian law case on Monday, this one dealing with the diminishment of the Mille Lacs Ojibwe Reservation in Minnesota.

Without comment, the justices rejected an appeal sought by Mille Lacs County and a private bank. The two parties have spent more than $1 million in taxpayer funds on a lawsuit claiming that the reservation no longer exists.

In March of this year, the 8th Circuit Court of Appeals dismissed the case. The court said the county and the bank lacked standing because they couldn't show how they were affected by the size of the reservation or the tribe's activities on the reservation.

"Neither the county nor the bank has shown that it is in immediate danger of sustaining threatened injury traceable to an action of the band," Judge Lavenski R. Smith wrote in the unanimous decision.

The court, however, did not decide whether the reservation exists. The county and the bank say the tribe relinquished 61,000 acres in the early 1900s.

That question could be considered in a future case, the court said, provided the county and the bank can show they are being harmed by the tribe's actions. Tribal leaders remain hopeful they can work with the county.

Mille Lacs v. Benjamin is the second major Indian law case the Supreme Court has rejected since returning to session last month. On October 18, the justices refused a case from South Dakota testing the reach of state jurisdiction in Indian Country.

South Dakota attorney general Larry Long had asked the court to allow states to go onto reservations to investigate alleged criminal activity. But the South Dakota Supreme Court said the state needs a warrant or permission from a tribal government.

Long submitted an amicus brief in Mille Lacs and supported the county's case, citing a Supreme court ruling that diminished the size of the Yankton Sioux Reservation. Separately, he is fighting the Lower Brule Sioux Tribe's attempt to reclaim land within its former reservation.

In a separate action on Monday, the high court agreed to allow the state of New York and the Department of Justice to participate in Oneida Indian Nation v. City of Sherrill. Oral arguments have not been set in the case, which centers on whether land the tribe purchases in its treaty area is Indian Country.

The Department of Justice is siding with the tribe, whose lands have been threatened with foreclosure for not paying property taxes to Sherrill. Two counties and the state are backing the city. The tribe is supported by the National Congress of American Indians, the United South and Eastern Tribes and several tribes.

Next Tuesday, the high court will hear a dispute over contract support costs in self-determination contracts. The Cherokee Nation and other tribes are suing the Department of Health and Human Services for failing to pay 100 percent of support costs.

Tribal leaders say the practice is discriminatory because the government fully funds all other types of contracts. A bill is pending in Congress to correct the disparity.

Mille Lacs v. Benjamin:
Supreme Court Docket Sheet | Decision in Mille Lacs v. Benjamin (March 9, 2004) | Denial of Rehearing (May 19, 2004) | Audio of Oral Arguments (October 24, 2003)

Oneida Indian Nation v. City of Sherrill:
Majority Opinion | Van Graafeiland Dissent | Briefs | Docket Sheet No. 03-855

Cherokee Nation:
Fed Circuit: Thompson v. Cherokee Nation | 10th Circuit: Cherokee Nation v. Thompson | Docket Sheet No. 03-853: Thompson v. Cherokee Nation | Docket Sheet No. 02-1472: Cherokee Nation v. Thompson | Department of Justice Petition No. 03-853 | Department of Justice Supplemental Brief No. 02-1472

Relevant Links:
NARF-NCAI Tribal Supreme Court Project - http://doc.narf.org/sc/index.html

Related Stories:
Mille Lacs diminishment case before Supreme Court (10/22)
South Dakota challenge to tribes rejected by high court (10/19)
Tribes file briefs in Oneida Nation land case (10/18)
Court won't rehear challenge to tribal land base (05/21)
Supreme Court to resolve self-determination dispute (03/23)
Minn. tribe wins another round in reservation dispute (03/10)
Supreme Court weighs self-determination dispute (03/09)

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