Litigation: Trial, Appellate and Supreme Court
An important part of our practice is the representation of our clients in litigation in federal, state and tribal courts nationwide. Our litigation practice and experience regularly includes work from the trial through appellate levels. Some of the landmark cases that our firm has handled are highlighted below. While these cases are illustrative, they by no means represent the full range of our litigation experience. With respect to our U.S. Supreme Court practice, for example, the attorneys in our firm have argued a dozen cases, and we have briefed (for parties or as amicus) several dozen more.
- Salazar v. Ramah Navajo Chapter, 132 S.Ct. 2181 (2012) and Arctic Slope Native Ass’n, Ltd. v. Sebelius, 133 S. Ct. 22 (2012), on remand Arctic Slope Native Ass’n, Ltd. v. Sebelius, 501 Fed. Appx. 957 (Fed. Cir. 2012), holding United States liable in money damages for the failure of the BIA and IHS to pay full contract support costs notwithstanding appropriations language providing that “not to exceed [a particular amount] shall be available for payments to tribes and tribal organizations for contract support costs.”
- Adoptive Couple v. Baby Girl and Cherokee Nation, 133 S. Ct. 2552 (2013), co-counsel for the tribe, informing the Court of the important tribal interests served by ICWA in preventing the breakup of Indian families, and the basis on which ICWA was constitutional.
- Cherokee Nation of Okla. v. Leavitt, 125 S. Ct. 1172 (2005), holding the United States liable for underpaying tribal contracts awarded under the Indian Self-Determination Act.
- Inyo Cnty., Cal. v. Paiute-Shoshone Indians of the Bishop Cmty., 538 U.S. 701 (2003), defending the tribe from claims by county officials of authority to search tribal records.
- Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172 (1999), upholding off-reservation treaty right to hunt, fish and gather.
More on our Supreme Court work is here.
- United States v. Confederated Tribes of Colville Indian Reservation, 606 F.3d 698 (9th Cir. 2010), upholding off-reservation tribal fishing rights.
- Michigan v. EPA, 581 F.3d 524 (7th Cir. 2009), upholding EPA’s decision to approve a tribe’s air quality standards from a legal challenge by a state.
- CETAC v. Kempthorne, 492 F.3d 460 (D.C. Cir. 2007), upholding Interior Department decision to take land into trust and to find it eligible for gaming under the “initial reservation” exception of the Indian Gaming Regulatory Act, from a challenge brought by a citizens group.
- Hammond v. Coeur d’Alene Tribe of Idaho, 384 F.3d 674 (9th Cir. 2004), rejecting the State’s effort to collect state excise taxes on gasoline sold on-reservation.
- Yukon-Kuskokwim Health Corp. v. Nat'l Labor Relations Bd., 234 F.3d 714 (D.C. Cir. 2000), holding that an Alaska Native entity which enters into an Indian Self-Determination Act contract with the United States to operate a hospital should be treated like the federal government for purposes of federal labor laws.
- Bowen v. Doyle, 230 F.3d 525 (2d Cir. 2000), aff'g 880 F. Supp. 99 (W.D.N.Y. 1995), affirming exclusive tribal jurisdiction over matters of internal self-governance, and enjoining state courts from interfering with that jurisdiction.
- Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995), affirming, for the first time in any federal court, the jurisdiction of Indian tribes to prosecute in tribal court felony crimes covered by the Major Crimes Act.
- Reich v. Great Lakes Indian Fish & Wildlife Comm'n, 4 F.3d 490 (7th Cir. 1993), holding that the Department of Labor cannot interfere with the administration of hunting and fishing rights protected by treaty by imposing the Fair Labor Standards Act on a tribal organization.
- Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir.), reh. denied, cert. denied, 500 U.S. 915 (1990), upholding tribal jurisdiction over Indians on reservation highways against an attack by the State based on Public Law 280.
More on our federal appellate work is here.
- State v. Native Vill. of Tanana, 249 P.3d 734 (Alaska 2011), holding that federally recognized Alaska Native tribes are entitled, under ICWA, to full faith and credit with respect to ICWA–defined child custody orders.
- Dairyland Greyhound Park, Inc. v. Doyle, 719 N.W.2d 408 (Wis. 2006), rejecting, in sharply contested, complex litigation, a challenge to the validity of all tribal-state gaming compacts in the state.
- American Dental Association v. Alaska Native Tribal Health Consortium, 3AN-06-4797CI (Alaska. Sup. Ct. 2006), upholding tribal dental health aid program against state regulation.
More on our state court appellate work is here.
In addition to the cases described in the Overview, members of the firm have briefed or argued dozens of other cases in the United States Supreme Court. For example, when he was Assistant to the Solicitor General in the Department of Justice, Harry Sachse was instrumental in persuading the Government to support Indian interests in numerous cases that came before the Court, and argued ten cases before the Court, including such landmark Indian law cases as McClanahan v. Ariz. Tax Comm'n, 411 U.S. 164 (1973) (state taxation of reservation income), Wash. Dep't of Game v. Puyallup Tribe, 414 U.S. 44 (1973) (Indian fishing and hunting rights), Mattz v. Arnett, 412 U.S. 481 (1973) (reservation boundaries), United States v. Mazurie, 419 U.S. 544 (1975) (tribal governmental powers), and Morton v. Mancari, 417 U.S. 535 (1974) (preference in the hiring of Native Americans).
We also participated as attorneys for tribal interests before the Court in the following Indian law cases: Rice v. Cayetano, 528 U.S. 495 (2000); Alaska v. Native Vill. of Venetie, 522 U.S. 520 (1998); and Arizona v. San Carlos Apache Tribe of Ariz., 463 U.S. 545 (1983).
Our firm has also represented tribes in filing numerous "friend of the court," amicus curiae briefs with the Supreme Court, including in the following cases: Tarrant Reg'l Water Dist. v. Herrmann, 133 S. Ct. 2120 (2013); United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011) ; United States v. Navajo Nation, 556 U.S. 287 (2009); Carcieri v. Salazar, 555 U.S. 379 (2009); Wagnon v. Prairie Band Potawatomi Nation, 126 S.Ct. 676 (2005); Nevada v. Hicks, 533 U.S. 353 (2001); Atkinson Trading Co. v. Shirley, 532 U.S. 645 (2001); Dep't of the Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001); Kiowa Tribe v. Mfg. Techs. Inc., 523 U.S. 751 (1998); South Dakota v. Yankton Sioux Tribe, 522 U.S. 329 (1998); Strate v. A-1 Contractors, 520 U.S. 438 (1997); Dep't of Interior v. South Dakota, 519 U.S. 919 (1996); Seminole Tribe v. Florida, 517 U.S. 44 (1996); South Dakota v. Bourland, 508 U.S. 679 (1993); Okla. Tax Comm'n v. Sac & Fox Nation, 508 U.S. 114 (1993); Blatchford v. Native Vill. of Noatak and Circle Vill., 501 U.S. 775 (1991); Okla. Tax Comm'n v. Citizen Band Potawatomi Indian Tribe of Okla., 498 U.S. 505 (1991); Duro v. Reina, 495 U.S. 676 (1990); Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 492 U.S. 408 (1989); Wyoming v. United States, 492 U.S. 406 (1989); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989); Okla. Tax Comm'n v. Graham, 489 U.S. 838 (1989); Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531 (1987); Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, 476 U.S. 877 (1986); United States v. Dion, 476 U.S. 734 (1986); Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985); Nat'l Farmers Union Ins. Cos. v. Crow Tribe of Indians, 471 U.S. 845 (1985); Kerr-McGee Corp. v. Navajo Tribe of Indians, 471 U.S. 195 (1985); Three Affiliated Tribes of Fort Berthold Reservation v. Wold Eng'g, P.C., 467 U.S. 138 (1984); Solem v. Bartlett, 465 U.S. 463 (1984); Rice v. Rehner, 463 U.S. 713 (1983); United States v. Mitchell, 463 U.S. 206 (1983); and United States v. John, 437 U.S. 634 (1978).
Finally, our firm has represented tribes in successfully resisting Supreme Court review of a favorable court of appeals decision in a number of cases including: Young v. Fitzpatrick, 262 P.3d 527 (Wash. App. 2011), cert denied, 133 S. Ct. 2848 (2013); Miller v. Wright, 705 F.3d 919 (9th Cir.), cert. denied, 133 S. Ct. 2829 (2013); Hoffman v. Sandia Resort & Casino, 232 P.3d 901 (N.M.), cert. denied, 131 S. Ct. 227, 178 (2010); Matheson v. Gregoire, 161 P.3d 486 (Wash. App. 2007), cert. denied, 555 U.S. 881 (2008); Confederated Tribes & Bands of Yakama Nation v. Confederated Tribes of Colville Indian Reservation, 470 F.3d 809 (9th Cir. 2006), cert. denied, 552 U.S. 819 (2007); Coeur d' Alene Tribe of Idaho v. Hammond, 384 F.3d 674 (9th Cir. 2004), cert. denied, 543 U.S. 1187 (2005); United States v. Muckleshoot Indian Tribe, 235 F.3d 429 (9th Cir. 2000), cert. denied, 151 L. Ed.2d 260 (2001); Phelps Dodge Corp. v. United States, 530 U.S. 1250 (2000); In re General Adjudication of All Rights to Use Water in Gila River Sys. and Source, 989 P.2d 739 (Ariz. 1999), cert. denied, 530 U.S. 1250 (2000); Vill. of Hotvela Traditional Elders v. Indian Health Serv., 1 F. Supp. 2d 1022 (D. Ariz. 1997), aff'd, 141 F.3d 1182 (9th Cir.) cert. denied, 525 U.S. 1107 (1999); Montana v. EPA, 137 F.3d 1135 (9th Cir. 1998), cert. denied, 525 U.S. 921(1998); Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164 (8th Cir. 1990), reh'g denied, cert. denied, 500 U.S. 915 (1990); and Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542 (2d Cir. 1991), cert. denied, 502 U.S. 818 (1991). See also United States v. Samish Indian Nation, 133 S. Ct. 423 (2012).
In addition to the cases described in the Overview, our firm has represented tribes and tribal organizations in the following cases before the federal courts of appeals:
- Cahto Tribe of Laytonville Rancheria v. Dutschke, 715 F.3d 1225 (9th Cir. 2013), upholding Tribe’s sovereign authority over tribal membership determinations from interference by BIA.
- Shoshone Indian Tribe v. United States, 672 F.3d 1021 (Fed. Cir. 2012), holding that a continuing trespass occurs for purposes of a damages claim against the United States where the United States allows oil and gas companies to extract resources under leases that did not comply with statutory requirements.
- Kaltag Tribal Council. v. Karleen Jackson, 344 Fed. Appx. 324 (9th Cir. 2009), cert. denied sub nom. Hogan v. Kaltag Tribal Council, 131 S.Ct. 66 (2010) (of counsel with NARF), holding Alaska tribe possesses inherent jurisdiction to adjudicate adoption involving tribal child and non-member Indian father residing outside Indian country, and requiring that Alaska give full faith and credit to the adoption.
- Samish Indian Tribe v. United States, 419 F.3d 1355 (Fed. Cir. 2005), holding that the statute of limitations did not run against a tribal claim for damages because the elements needed to bring a claim for damages had not yet accrued.
- United States v. Oregon, 470 F.3d 809 (9th Cir. 2006), holding that the tribe’s claim to establish off-reservation fishing rights was not barred by prior litigation.
- Native Village of Eyak v. Daley, 375 F.3d 1218 (9th Cir. 2004) (en banc) (of counsel to NARF), order vacating dismissal of claims.
- Curtis v. Sandia Casino, 67 F. App'x 576 (10th Cir. 2003), dismissing for lack of federal jurisdiction, claims against the tribe based on alleged violations of the federal Americans With Disabilities Act and Age Discrimination in Employment Act.
- Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of Fort Peck Reservation, 323 F.3d 767 (9th Cir. 2003), defending a tribal utility tax; matter was ultimately resolved by a settlement agreement.
- Katie John v. United States and Alaska Federation of Natives v. United States, 72 F.3d 698 (9th Cir. 1995), cert. denied 116 S. Ct. 1672 (1996), on renewed appeal from final judgment 247 F.3d 1032 (9th Cir. 2001) (en banc), serving as of counsel on cross-petition for writ of certiorari on issue of whether United States’s navigational servitude constitutes an “interest in waters,” title to which is in the United States, within the meaning of the “public lands” provision of Title VIII of the Alaska National Interest Lands Conservation Act, and of counsel in follow-on Ninth Circuit appeal.
- In re the EXXON VALDEZ, Case No. A89-069 (D. Alaska) and Case No. 3AN-89-2533 (Alaska Superior Court); See also Exxon Shipping Co. v. Baker, 554 U.S. 471 (2008) and Alaska Native Class v. Exxon Corp., 104 F.3d 1196 (9th Cir. 1997); Eyak Native Village v. Exxon, 25 F.3d 773 (9th Cir. 1994), serving as liaison and lead class counsel for class of Alaska Natives who relied on natural resources to meet subsistence needs in suit for damages arising from the Exxon Valdez oil spill, resulting in a recovery of compensatory and punitive damages.
- Ramah Navajo Chapter v. Lujan, 112 F.3d 1455 (10th Cir. 1997), on remand, 50 F.Supp.2d 1091 (D.N.M. 1999), serving as counsel for absent “DCA” class members initially excluded from nationwide class settlement.
- Ramah Navajo School Board and Puyallup Tribe of Indians v. Babbitt, 87 F.3d 1338 (D.C. Cir. 1996), interpreting scope of agency authority and discretion under the Indian Self-Determination Act, and declaring invalid Bureau of Indian Affairs practice regarding contract support cost payments.
- Native Village of Venetie v. State of Alaska, 944 F.2d 548 (9th Cir. 1991) (counsel for amici 197 Tribes, Alaska Federation of Natives, and Alaska Native Coalition), holding Indian Child Welfare Act and Public Law 280 left intact the inherent authority of Alaska Native Tribes to adjudicate child custody and related matters, and entitling those decrees to full faith and credit.
- Fluent v. Salamanca Indian Lease Auth., 928 F.2d 542 (2d Cir. 1991), holding that 1875 federal statute that approved leases of tribal land did not waive tribe’s sovereign immunity, and tribe was an indispensable party to a suit challenging the validity of a federal statute that settled tribal claims regarding leases of tribal lands.
- State of Alaska v. Venetie, 856 F.2d 1384 (9th Cir. 1988) counsel for amici Alaska tribal interests in interlocutory appeal concerning the application of the tribal exhaustion rule at preliminary injunction stage.
In addition to the state court cases highlighted in the Overview, our firm has briefed or argued many other cases in state courts, including:
- City of Duluth v. Fond du Lac Band of Lake Superior Chippewa, 843 N.W.2d 577 (Minn. 2014), ruling that an agreement between a city and tribe did not waive immunity for action in state court.
- Healy Lake Vill. v. Mt. McKinley Bank, 322 P.3d 866 (Alaska 2014), ruling that state courts lacked jurisdiction over a tribal election matter.
- McRary v. Ivanof Bay Village, 265 P.3d 337 (Alaska 2011), upholding tribal sovereign immunity from suit and reaffirming prior ruling that Alaska tribes are sovereign in action arising under contract.
- Taxpayers of Michigan Against Casinos v. State, 732 N.W.2d 487 (Mich. 2007) and 685 N.W.2d 221 (Mich. 2004), rejecting challenges to the validity of tribal-state gaming compacts.
- Alaskans for a Common Language, Inc. and U.S. English, Inc. v. Kritz, et al., 170 P.3d 183 (Alaska 2007) (of counsel), successfully challenging portions of “English Only” law.
- Runyon ex rel. B.R. v. Association of Council Presidents, et al., 84 P.3d 437 (Alaska 2004), co-counsel with Native American Rights Fund for amicus Alaska Inter-Tribal Council in successfully urging Court to reject Alaska Legislature’s request that the Court overrule John v. Baker, 982 P.2d 738 (Alaska 1999), which held that the Department of the Interior had lawfully recognized the political tribal status of Alaska Native villages.
- John v. Baker, 982 P.2d 738 (Alaska 1999), cert. denied 528 U.S. 1182 (2000), co-counsel for tribal amici in first Alaska Supreme Court case to confirm the federally recognized sovereign status of Alaska Native villages operating outside Indian country.
- CIGNA Ins. Co. and Native Village of Mekoryuk, et al. v. Moses, Case Nos. S-08908/ 8918 (Alaska Supreme Court), co-counsel for amici in case involving interplay between sovereign immunity and workers compensation laws; appeal dismissed on settlement.
- Hernandez v. Lambert, 951 P.2d 436 (Alaska 1998), counsel for amicus Native Village of Tanana in challenge to tribal court adoption decree terminating parental rights.
- Catholic Social Services v. C.A.A. and Cook Inlet Tribal Council, 783 P.2d 1159 (Alaska 1989), cert. denied, 495 U.S. 948 (1990), concerning whether Indian Child Welfare Act mandates tribal notice of state court voluntary parental rights termination proceeding.
- Matter of 1981, 1982, 1983, 1984, and 1985 Delinquent Property Taxes Owed City of Nome, Alaska, 780 P.2d 363 (Alaska 1989) (of counsel), upholding immunity of IRA Tribe from city property taxes assessed on tribal property outside Indian country.