2016-17 Term, Supreme Court Cases
(October 2016 - July 2017)
Last Updated: 1/24/17
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CASES DECIDED
No cases have been decided so far in the 2016-2017 term.
PETITION FOR CERTIORARI GRANTED
Two cases have been granted review for the 2016-2017 term.
Question Presented: Section 2(a) of the Lanham Act, 15 U.S.C. 1052(a), provides that no trademark shall be refused registra-tion on account of its nature unless, inter alia, it “[c]onsists of * * * matter which may disparage * * * persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” The question presented is as follows: Whether the disparagement provision in 15 U.S.C. 1052(a) is facially invalid under the Free Speech Clause of the First Amendment.
History: Petition was filed on 4/20/2016. Petition for certiorari was granted on 9/29/2016.
Ruling Below: In re Tam, Court of Appeals, Federal Circuit,
808 F.3d 1321. The Court of Appeals, en banc, Moore, Circuit Judge, held that: 1) the prohibition on the registration of disparaging trademarks was subject to strict scrutiny under the First Amendment, abrogating In re McGinley, 660 F.2d 481; 2) the prohibition on the registration of disparaging trademarks was not a regulation of commercial speech; 3) the prohibition on the registration of disparaging trademarks significantly chilled private speech; 4) the registration of trademarks did not constitute government speech; 5) the registration of trademarks was not part of a government subsidy program; and 6) even assuming that the prohibition on the registration of disparaging trademarks was a regulation of commercial speech, the government lacked a substantial government interest for prohibiting disparaging marks. Vacated and remanded.
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Question Presented: Whether the sovereign immunity of an Indian tribe bars individual-capacity damages actions against tribal employees for torts committed within the scope of their employment.
History: Petition was filed on 6/13/2016. Petition for certiorari was granted on 9/29/2016.
Ruling Below: Lewis v. Clarke, Supreme Court of Connecticut
320 Conn. 706. The Supreme Court, Eveleigh, J., held that tribal sovereign immunity extended to claims.
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PETITION FOR CERTIORARI PENDING
Six petitions for writ of certiorari are pending in the 2016-2017 term.
Questions Presented: 1. Did the court of appeals err in reassigning District Court Judge Bruce S. Jenkins for adhering to this Court’s verbatim holding in Hagen? 2. Did the court of appeals err by holding that the town of Myron, Utah, is not removed from Indian country for the purposes of criminal jurisdiction under 18 U.S.C. § 1151?
History: Petition was filed on 1/6/17.
Ruling Below: Ute Indian Tribe of the Uintah v. Morton, United States Court of Appeals, Ninth Circuit.
835 F.3d 1255. The Court of Appeals, Gorsuch, Circuit Judge, held that: 1) issue preclusion barred relitigation of whether parcel of land within city was Indian country; 2) equitable principles did not warrant eliminating checkerboard jurisdiction; and 3) doctrine of laches did not apply. Reversed.
Questions Presented: The questions presented are (1) whether the doctrine of res judicata and collateral estoppel precluded the Assistant Secretary of the Department of Interior in 2011 from revisiting his predecessor’s 1995 final and conclusive decision about petitioners’ status as Native Americans; and (2) whether the Assistant Secretary’s 2011 decision to declassify petitioners’ Native American Indian status violated the Administrative Procedures Act.
History: Petition was filed on 12/19/16.
Ruling Below: Alto v. Jewell, United States Court of Appeals, Ninth Circuit.
2016 WL 5076043. [1] Assistant Secretary of the Interior for Indian Affairs had authority to review prior enrollment decision, where former assistant secretary predicated her decision on inaccurate assumption; and [2] Assistant Secretary’s decision approving plaintiffs’ disenrollment was not arbitrary, capricious, or abuse of discretion. Affirmed.
Questions Presented: 1. Whether Congress abrogated the sovereign immunity of an Indian tribe under 15 U.S.C. § 1681, et seq., by providing that "any...government" may be liable for damages. 2. Whether an individual who receives a computer-generated cash register receipt displaying more than the last five digits of the individual’s credit card number and the card’s expiration date has suffered a concrete injury sufficient to confer standing under Article III of the United States Constitution.
History: Petition was filed on 12/7/16.
Questions Presented: The court of appeals held that the Secretary of the Interior may take land into trust for a tribe even if that tribe was not recognized in 1934 and even if its members did not reside in Indian country. The questions presented are as follows: 1. Whether, to have been a “recognized Indian tribe now under Federal jurisdiction” in 1934, a tribe must have been “recognized” at that time. 2. Whether, to have been “under Federal jurisdiction” in 1934, a tribe must have been located in Indian country—that is, on land over which the United States exercised jurisdiction to the exclusion of State jurisdiction.
History: Petition was filed on 10/27/16.
Rulings Below: Confederated Tribes of the Grand Ronde Community v. Jewell, U.S. Court of Appeal, District of Columbia Circuit
830 F.3d 552. The Court of Appeals, Wilkins, Circuit Judge, held that: 1) term “recognized,” as used in larger phrase “recognized Indian tribe now under Federal jurisdiction” in IRA's definition of “Indian,” was ambiguous under Chevron analysis; 2) Secretary reasonably interpreted term “recognized,” as used in IRA section defining “Indian,” so that there was no temporal limitation on when recognition occurred; 3) term “under federal jurisdiction,” as used in larger phrase “recognized Indian tribe now under Federal jurisdiction” in IRA's definition of “Indian,” was ambiguous under Chevron analysis; 4) Secretary reasonably interpreted term “under federal jurisdiction,” as used in IRA”s definition of “Indian,” so as to require two-part inquiry; 5) Secretary reasonably applied its two-part inquiry as to whether tribe was “under federal jurisdiction”; and 6) Secretary reasonably found that land parcel was within broader area of historical significance to tribe, and thus met initial-reservation exception under IGRA. Affirmed.
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Questions Presented: 1. Does a statute directing the federal courts to “promptly dismiss” a pending lawsuit following substantive determinations by the courts (including this Court’s determination that the “suit may proceed”)—without amending underlying substantive or procedural laws—violate the Constitution’s separation of powers principles? 2. Does a statute which does not amend any generally applicable substantive or procedural laws, but deprives Petitioner of the right to pursue his pending lawsuit, violate the Due Process Clause of the Fifth Amendment?
History: Petition was filed on 10/11/2016.
Rulings Below: Patchak v. Jewell., U.S. Court of Appeal, District of Columbia Circuit
828 F.3d 995. The Court of Appeals, Wilkins, Circuit Judge, held that:
1) the Gun Lake Act did not encroach upon Article III judicial power of the courts to decide cases and controversies in violation of separation of powers doctrine;
2) the Act did not violate resident's First Amendment right to petition;
3) the Act did not violate resident's right to due process, even if he had a protected property right in his cause of action; and
4) the Act was not an unconstitutional bill of attainder. Affirmed.
Question Presented: Whether tribal sovereign immunity extends to individual tribal employees to bar suit against them in state district court for alleged negligent service of alcohol to a lawful purchaser at a tribal-owned casino on tribal trust land.
History: Petition was filed on 5/26/2016.
Ruling Below: Zaunbrecher v. Succession of David, Court of Appeal of Louisiana, Third Circuit.
181 So.3d 885. The Court of Appeal, Ezell, J., held that the doctrine of sovereign immunity did not bar motorist's son's cause of action against three casino employees in their individual capacities. Affirmed in part, reversed in part, and remanded.
Petition for certiorari denied
Nine petitions for writs of certiorari have been denied in the 2016-2017 term.
Question Presented: The question presented is whether the Assistant Secretary, Department of Interior, Bureau of Indian Affair’s decision to recognize a void tribal ordinance stripping petitioners of their tribal membership--a tribal ordinance enacted by a minority six-member tribal committee pursuant to authority from a tribal Constitution which was never legally ratified by the Band as a whole--violates appellants’ due process rights and the Administrative Procedures Act.
History: Petition was filed on 11/14/16. Petition was denied on 1/23/17.
Ruling Below: Aguayo v. Jewell, United States Court of Appeals, Ninth Circuit.
827 F.3d 1213. The Court Of Appeals, M. Smith, Circuit Judge, held that: 1) BIA's determination that it would decline to intervene in enrollment dispute on behalf of disenrolled members was final agency action subject to judicial review; 2) any procedural protections in Indian Reorganization Act (IRA) for adoption of governing documents by an Indian tribe did not apply; 3) exception to judicial review under APA for actions that were committed to agency discretion by law did not apply; 4) cause of action accrued, and six-year limitations period began to run, when BIA's approval of tribe's constitution was final; 5) Assistant Secretary did not abuse his discretion; 6) general trust relationship between United States and Indian tribes did not compel a finding by Court of Appeals that BIA acted arbitrarily or capriciously; and 7) res judicata and collateral estoppel principles did not apply. Affirmed.
Questions Presented: 1. Whether the Ninth Circuit Court of Appeals' nunc pro tune ruling depriving Petitioners of substantive procedural rights was in error? 2. Whether the Ninth Circuit Court of Appeals' ruling on the statute of limitations was in error?
History: Petition was filed on 11/3/16. Petition was denied on 1/9/17.
Rulings Below: Nisenan Tribe of the Nevada City Rancheria v. Jewell, U.S. Court of Appeal, District of Columbia Circuit
650 Fed.Appx. 497. The Court of Appeals held that: 1) District Court had jurisdiction to grant plaintiffs' motion to correct clerical error in stipulation for entry of judgment in earlier action nunc pro tunc, and 2) government did not waive statute of limitations as affirmative defense. Affirmed.
Questions Presented: Whether the Court of Appeals deviated from this Court's decision in Carcieri v Salazar, 555 U.S. 379 (2009) which held that the Secretary of Interior's Federal Acknowledgment Process (FAP) established in
25 C.F.R. Part 83 is not determinative as to whether Indian Tribe is "recognized" for the purposes of the Indian Reorganization Act (25 U.S.C. § 479)? Whether the Secretary of Interior can avoid performing her mandatory non-discretionary duty under the Indian Reorganization Act (25 U.S.C. § 476) to call elections to ratify tribal constitutional documents within a reasonable time by requiring a tribe to exhaust administrative remedies estimated to require 30 years to complete?
History: Petition was filed on 10/27/16. Petition was denied on 1/9/17.
Rulings Below: Mackinac Tribe v. Jewell., U.S. Court of Appeal, District of Columbia Circuit
828 F.3d 995. The Court of Appeals held that tribe was required to exhaust administrative remedies by first seeking acknowledgment through Part 83 Process. Affirmed.
Questions Presented: The questions presented are: (1) Whether ICWA applies where the child has not been removed from an Indian family or community. (2) Whether ICWA’s adoptive placement preferences, 25 U.S.C.1915(a), require removal from a foster placement made under 1915(b), for the purpose of triggering the adoptive placement preferences contained in 1915(a). (3) Whether the state courts erred in holding that "good cause" to depart from ICWA’s placement preferences must be proved by "clear and convincing evidence" - contrary to the text and structure of the state and the decision of at least one other state court of last resort - or otherwise erred in their interpretation of "good cause."
History: Petition was filed on 10/07/2016. Petition was denied on 1/9/17.
Rulings Below: In re Alexandria P., Court of Appeal, Second Dist., Div. 5, California
1 Cal.App.5th 331. The Court of Appeal, Kriegler, J., held that:
1) trial court did not exceed scope of remand or disregard law of the case by considering impact on child's cultural identity if she were to remain foster parents;
2) good cause to depart from ICWA's placement preferences did not exist as a matter of law;
3) substantial evidence supported finding that there was no good cause to depart from ICWA's placement preferences;
4) any error in excluding full report prepared by bonding and attachment expert was harmless;
5) trial court did not abuse its discretion in considering social worker's report without allowing foster parents to cross-examine him; and
6) trial court did not abuse its discretion by denying foster parents' request to present additional evidence or testimony.
Affirmed.
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Question Presented: Whether federal common law claims of trespass and ejectment are available to American Indians when Congressional acts specifically identify the American Indian group to which land is awarded and when the public lands are actually set apart for their permanent occupancy
History: Petition was filed on 8/31/2016. Petition was denied on 11/7/16.
Ruling Below: Wolfchild v. Redwood County, Eighth Circuit Court of Appeals
824 F.3d 761. The Court of Appeals, Bright, Circuit Judge, held that:
1) plaintiffs did not have cause of action under federal common law for violation of possessory rights to aboriginal land;
2) federal statute that authorized Interior Secretary to set apart land for loyal Mdewakanton did not create private remedy; and
3) district court abused its discretion in awarding sanctions.
Affirmed in part, vacated in part, and remanded.
Questions Presented: 1) Where it is undisputed that Plaintiffs/Petitioners Debra Jones and Arden Jones, and their deceased son Todd R. Murray, all had individual rights under the 1868 Ute Tribe treaty with the United States, and where, under the procedural posture of this case, it is undisputed that Plaintiffs’ and their Decedent son’s individual rights under the Treaty were violated, did Plaintiffs state a claim for relief under 42 U.S.C. § 1983 based on the violation of their treaty rights? 2) Where State police officers have pursued an Indian within Indian country without either probable cause or jurisdictional authority can they be relieved of the common law duty to preserve evidence simply because the officers’ tortious conduct giving rise to the claims against them arose within Indian country? 3) Where there are disputed material facts, can a district court grant summary judgment based upon the court’s opinion that a reasonable jury would decide the case in favor of the summary judgment movant?
History: Petition was filed on 7/13/2016. Petition was denied on 10/3/2016.
Ruling Below: Jones v. Norton, U.S. Court of Appeals, Tenth Circuit.
809 F.3d 564. The Court of Appeals, Briscoe, Circuit Judge, held that: [1] suspect was not seized due to officers’ actions during encounter; [2] police officers did not use excessive force that shocked conscience, precluding excessive force claim; [3] treaties did not give parents private right of action enforceable through section 1983; [4] officers did not conspire to obstruct justice or violate son’s civil rights; [5] mortuary apprentice did not intentionally inflict emotional distress (IIED) upon parents by making incision to draw blood from son’s body; and [6] District Court did not abuse its discretion by denying request for sanction for alleged spoliation of numerous forms of evidence. So ordered.
Questions Presented: In Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978), and Dura v. Reina, 495 U.S. 676 (1990), the Court held that Indian tribes' power to prosecute for offenses committed within the tribe's territory extends only to members of the tribe. In so doing, the Court reaffirmed its earliest tribal-law rule, that "the limitation upon [a tribe's] sovereignty amounts to the right of governing every person within their limits except themselves." Fletcher v. Peck, IO U.S. 87, 147 ( 1810). In this case, Petitioner Norbert Kelsey was prosecuted by the Little River Band of Ottawa Indians (the Band), of which he is a member, for acts taking place outside the tribe's territorythat is, outside the Band's "limits." Id. The first question presented is: 1) Whether Indian tribes may prosecute their members for acts that occur outside the tribe's territory absent Congressional authorization. In addition, Petitioner Kelsey's conduct was, at the time of its alleged commission, plainly outside the Band's prosecutorial reach as defined by its own criminal jurisdiction statutes. To uphold the prosecution, the Tribal Court of Appeals rewrote the Band's law by jettisoning an unambiguous statutory limitation on its power and asserting jurisdiction over extraterritorial conduct not previously reached by its laws. Therefore, the second question presented is: (2) Whether the Band's retroactive expansion of a narrow and precise jurisdictional statute to encompass an extraterritorial act previously outside its plain terms violates the due process protections of the Indian Civil Rights Act, 25 U.S.C. § 1302(a), and Bouie v. City of Columbia, 378 U.S. 347 (1964).
History: Petition was filed on 7/7/2016. Petition was denied on 10/3/2016.
Ruling Below: Kelsey v. Pope, U.S. Court of Appeals, Sixth Circuit.
809 F.3d 849. The Court of Appeals, McKeague, Circuit Judge, held that:
1) tribe had inherent authority to prosecute tribal member for offense substantially affecting tribal self-governance interests, even when such offenses took place outside of Indian country;
2) Indian Civil Rights Act (ICRA) extended due process protections to member;
3) federal constitutional standards applied; and
4) decision of tribal Court of Appeals to recognize jurisdiction over conduct of member of Indian tribe in touching victim's breasts through her clothing at tribe's off-reservation community center did not violate due process as extended through ICRA.
Reversed and vacated.
Questions Presented: Whether a treaty promise to pay reparations to a group of Native Americans in the form and amount that is "best adapted to the respected wants and conditions of' said group of Native Americans, and subsequent appropriation of funds by Congress to pay such reparations, create a fiduciary relationship between the United States and said group of Native Americans. Whether the Administrative Procedures Act waives the United States' immunity from suit for accounting claims regarding trust mismanagement that begun before the enactment of the Act. Whether a set of Appropriations Acts by Congress that defer the accrual of trust mismanagement claims against the United States operates as a waiver of the United States' immunity from suit.
History: Petition was filed on 6/20/2016. Petition was denied on 10/3/2016.
Ruling Below: Flute v. U.S., U.S. Court of Appeals, Tenth Circuit.
808 F.3d 1234. The Court of Appeals, McHugh, Circuit Judge, held that: 1 Department of Interior (DOI) Appropriations Act of 2009 that tolled running of applicable statute of limitations for claims “concerning losses to or mismanagement of trust funds” did not relieve descendents of independent obligation to identify unequivocal waiver of immunity or express consent to be sued; 2 Treaty of Little Arkansas and 1866 Appropriations Act did not create ongoing fiduciary obligations to descendents; and 3 descendents were not entitled to accounting. Affirmed. Phillips, Circuit Judge, filed concurring opinion.
Questions Presented: The “disparagement clause” in § 2(a) of the Lanham Act bars the registration of a trademark that “may disparage … persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” 15 U.S.C. § 1052(a). The questions presented are: 1. Whether § 2(a)’s disparagement clause violates the First Amendment. 2. Whether § 2(a)’s disparagement clause is impermissibly vague, in violation of the First and Fifth Amendments. 3. Whether the government’s decades-long delay between registering a trademark and cancelling the registration under § 2(a)’s disparagement clause violates due process.
History: Petition was filed on 4/25/2016. Petition was denied on 10/3/2016.
Ruling Below: Pro Football, Inc. v. Blackhorse, U.S. Dist. Ct, E.D. Virginia
112 F.Supp.3d 439. The District Court, Gerald Bruce Lee, J., held that: 1) cancellation of trademark registrations did not violate team's free speech rights; 2) federal trademark registration program is government speech that is exempt from First Amendment scrutiny; 3) Lanham Act's “may disparage” provision was not facially void for vagueness under due process principles; 4) Lanham Act's “may disparage” provision, as applied, was not void for vagueness; 5) trademark registrations were not property interests protected by due process or Takings Clause; 6) evidence established that registered “REDSKINS” marks may disparage Native Americans; and 7) unreasonably delay, as required for team's laches defense, was not shown. Summary judgment for Native Americans; TTAB's ruling affirmed.
