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Supreme Court won't rule on Indian law cases
Tuesday, January 10, 2006

The U.S. Supreme Court declined to hear a number of Indian law and Indian law-related cases on Monday, as nominee Samuel Alito Jr. went before his confirmation hearing.

Without comment, the justices rejected petitions in cases affecting treaty rights and federal recognition, as well as an Indian abuse case on an Wisconsin reservation. None of the cases originated from the 3rd Circuit Court of Appeals, the court on which Alito sits. There are no federally recognized tribes in the circuit, so Alito has a scant record when it comes to Indian law.

But if Alito is confirmed to replace the retiring Justice Sandra Day O'Connor, he will be asked to consider and rule on some significant Indian law cases. Here is a roundup of the actions taken by the court yesterday [ Order List].

FEDERAL RECOGNITION
The Samish Nation will be able to seek a share of the treaty catch in Washington now that the Supreme Court removed the last legal hurdle facing the tribe.

The Samish were denied a share because the Bureau of Indian Affairs said the tribe lacked federal recognition at the time of the historic Boldt fishing rights case in the 1970s. But the federal courts later determined that the BIA wrongly withheld recognition and that "extraordinary circumstances" warranted the reopening of the Boldt judgment.

Such a move had been opposed by a number of other tribes, including the Lummi Nation, the Nisqually Tribe and the Makah Nation. Believing their rights would be adversely affected, they asked the high court to review a 9th Circuit Court of Appeals decision that went in favor of the Samish a year ago this month.

The case will now return to the lower courts for further consideration. Separately, the Samish Nation has sued the federal government to recover funding that it had been denied as it fought for recognition.

The case is Lummi Nation v. Samish Indian Tribe, No. 05-445 [Docket Sheet].

Lower Court Decision:
Samish v. Washington (January 6, 2005)

Related Stories:
Jilted Washington tribe wins court ruling (1/7)
Samish Nation wins round in federal funding fight (08/22)

TREATY RIGHTS
The Supreme Court declined to hear a $6 billion treaty rights claim filed by the Skokomish Tribe of Washington. The tribe and individual tribal members sued the city of Tacoma, alleging that the construction of a dam violated their fishing rights.

A full panel of the 9th Circuit Court of Appeals issued a somewhat complicated ruling in the case last March. The 11 judges split on the major issues in the case, including whether the tribe filed its suit too late, whether individual tribal members can assert treaty claims and whether the city of Tacoma can be held liable.

The tribe filed the appeal but the court declined to consider the issues. Parts of the case were transferred to the U.S. Court of Federal Claims, to determine whether the federal government can be held liable.

The case is Skokomish Indian Tribe v. US, No. 05-434 [Docket Sheet].

Lower Court Decision:
Skokomish Tribe v. Tacoma (March 9, 2005)

Related Stories:
Appeals court rejects tribe's treaty rights claim (03/10)

TREATY RIGHTS II
The Supreme Court rejected the appeal of a member of the Tuscarora Nation who was fined $25 by the state of New York for violating state fishing rules. Neil Patterson Jr. argued that he had a right to fish off the reservation under the 1974 Treaty of Canandaigua, which promises Iroquois tribal members "free use and enjoyment" of ancestral lands.

The New York Court of Appeals ruled against Patterson last June. In a 7-0 decision, the judges said Tuscarora members lost their rights to use the off-reservation land because it was sold by the Seneca Nation.

The case is Patterson v. New York, No. 05-550 [Docket Sheet].

Lower Court Decision:
People v. Patterson (June 14, 2005)

Related Stories:
Court rejects Tuscarora man's fishing rights claim (06/15)

INDIAN ABUSE/LIABILITY
The Supreme Court rejected the appeal of an Indian man who was abused as a teenager after being placed in foster care on the Menominee Reservation in Wisconsin.

At age 15, Nahquaseh Waubanascum was taken from his grandparents and placed under the care of Menominee County. Wisconsin is a Public Law 280 state, so civil matters like child welfare fall under state jurisdiction.

While in the county's care, Waubanascum was abused by Mark Fry, the well-known principal of the high school on the reservation. The incident came to light after another Indian teen alleged he was abused by Fry. Local authorities later discovered that Fry had been convicted in another state of misdemeanor disorderly conduct for inappropriate behavior with students.

Waubanascum, now an adult, then sued two counties for violating his civil rights. He settled with Menominee County for undisclosed terms and had been awarded a judgment against Shawano County but the county challenged the ruling. The 7th Circuit Court of Appeals last August found that Shawano County couldn't held liable because the county never had jurisdiction over Waubanascum and his child welfare proceedings.

The case is Waubanascum v. Shawano, No. 05-551 [ Docket Sheet].

Lower Court Decision:
Waubanascum v. Shawano County (August 1, 2005)

Related Stories:
Court clears county of liability in teen abuse case (08/02)

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

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