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
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
Carcieri v. Kempthorne
. The justices issued an order
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
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.
, 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.
v. Osage Nation
, the Osage Nation
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
allowed the state and the Oklahoma Tax Commission
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
Oregon. The tribes wanted to sue PacifiCorp
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
the state of Washington over a tobacco compact. The case was Matheson
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
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
section of IGRA dealing with secretarial procedures.
The Department of Justice
disagreed with the ruling but declined
appeal and urged the high court not to accept the case. The state also opposed
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
Arguments still not settled in land-into-trust
(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
(10/6) Navajo Nation breach of trust case on docket
(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