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The Rise of Tribes and the Fall of Federal Indian Law
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Indian law cases on Supreme Court's new docket
Tuesday, October 7, 2008
Filed Under: Law

The U.S. Supreme Court opened a new term on Monday, after expanding its docket to include two more Indian law cases and declining a handful of others.

The justices previously agreed to hear a major land-into-trust case affecting the Narragansett Tribe of Rhode Island and other tribes who recently gained federal recognition. Oral arguments are set for November 3, less than a month away.

The Narragansett Tribe, however, won't be able to present its views in Carcieri v. Kempthorne. The justices issued an order yesterday that limited the presentation to the state -- whose officials have bickered over who will appear in court -- and to the federal government.

At issue is whether the land-into-trust provisions of the Indian Reorganization Act apply to tribes like the Narragansetts, who weren't federally recognized when the law was passed in 1934. And if the tribe can acquire new land, the state claims it has civil and criminal jurisdiction.

Gov. Donald Carcieri (R) is being represented by former Bush administration attorney Theodore B. Olson, who has appeared before the court many times, both as a government official and as a litigator for private clients. As of yesterday, the state still hadn't figured out who will argue the case.

Arguments haven't been set for the two new cases. But one of them -- US v. Navajo Nation -- has already been before the high court so the issue of a bungled lease between the Navajo Nation and Peabody Energy, the world's largest coal company, is a familiar one.

What's new is the addition of Chief Justice John G. Roberts and Justice Samuel Alito. President Bush nominated the two conservative-leaning jurists after the court in March 2003 voted 6-3 against the tribe's breach of trust claim.

An appeals court revived the case but the Bush administration persuaded the justices to hear the case again. The high court's movement towards a larger conservative block could have an impact on the tribe's claim for $600 million in damages.

The second case -- Hawaii v. Office of Hawaiian Affairs -- poses Native Hawaiian issues that are familiar to Roberts. Prior to joining the court, he defended the state of Hawaii over an election that was limited to Native Hawaiians.

Roberts lost that case -- incidentally, the other side was represented by Ted Olson -- but Native Hawaiians remain a political and legal question in the state and in Congress. At issue in the new case is whether the state can sell, transfer or exchange 1.2 million acres of Native Hawaiian lands without resolving the status of Native Hawaiians.

So far, the three cases are the only Indian law ones on the docket. Yesterday, the justices turned down appeals in six other cases, on issues ranging form Indian gaming to taxation.

In Kemp v. Osage Nation, the Osage Nation of Oklahoma sued the state over income taxes assessed on members who are employed by the tribe and live on tribal land. The state raised a sovereign immunity defense and the 10th Circuit Court of Appeals allowed the state and the Oklahoma Tax Commission to be removed as defendants.

However, the 10th Circuit said the case could proceed against officials on the tax commission. The state asked the Supreme Court to overturn the ruling but the justices without comment declined to review the dispute.

The lawsuit has not been decided on the merits. At issue is whether Osage County, where the tribe is based, is considered Indian Country. If that's the case, then the state cannot impose income taxes on members who are employed by the tribe and live on the reservation.

On treaty rights, the justices rejected an appeal by the Klamath Tribes of Oregon. The tribes wanted to sue PacifiCorp for allegedly damaging fish runs but lower courts rejected the claim. The case was Klamath Tribes of Oregon v. PacifiCorp.

The justices also declined to hear a case involving a member of the Puyallup Tribe who sued the state of Washington over a tobacco compact. The case was Matheson v. Gregoire.

The court won't hear an appeal by several Western Shoshone tribes to determine ownership of 60 million acres of treaty land. The case was South Fork Band v. United States.

On gaming, the justices refused to hear an appeal by the Kickapoo Tribe, whose leaders have been trying to force the state of Texas to negotiate a Class III compact. The Interior Department stepped in and said it would issue "secretarial procedures" to allow the tribe to engage in gaming consistent with the Indian Gaming Regulatory Act.

The state went to court to block Interior from proceeding. The 5th Circuit Court of Appeals in August 2007 invalidated the section of IGRA dealing with secretarial procedures.

The Department of Justice disagreed with the ruling but declined to appeal and urged the high court not to accept the case. The state also opposed the appeal.

In another gaming case, the justices granted a "Rule 46" petition to dismiss Ho-Chunk Nation v. Wisconsin. The tribe and the state recently settled their Class III gaming compact dispute.

Related Stories:
Arguments still not settled in land-into-trust case (10/7)
Narragansett Tribe won't argue at Supreme Court (10/6)
Supreme Court won't hear Osage Nation case (10/6)
Supreme Court refuses to hear Kickapoo gaming case (10/6)
Navajo Nation breach of trust case on docket again (10/2)
States' rights at issue in Supreme Court cases (10/2)
Supreme Court to hear Navajo Nation trust case (10/1)
Supreme Court to hear Native Hawaiian case (10/1)
Supreme Court considers Indian law cases (9/30)



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