United States: Supreme Court Nominee Has No Clear Track Record on Indian Country Cases

James Meggesto is a Partner in our Washingotn, D.C. office


  • President Obama nominated Merrick Garland on March 16, 2016, to be an associate justice on the U.S. Supreme Court. Garland now serves as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit.
  • While Garland has not been the lead author of any court opinions directly impacting Indian Country, he has joined the majority panel opinion on several of these cases.

President Obama nominated Merrick Garland on March 16, 2016, to be an associate justice on the U.S. Supreme Court. Garland now serves as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. Despite 19 years on the bench, Garland has not personally authored any of the opinions directly impacting Indian Country. He has, however, joined the majority in each of the Indian law cases listed below.

Most significantly, he was on the appeals court panel that issued the adverse decision in San Manuel Indian Bingo v. NLRB, which held that the National Labor Relations Act (NLRA) applied to tribal gaming enterprises despite their governmental nature. In the years since the San Manuel decision, tribes have fought in Congress to reverse that decision. Garland's support for the San Manuel decision could have an impact on the Saginaw Chippewa Tribe and Little River Band, both of which have filed petitions seeking Supreme Court review of similarly adverse decisions that apply the NLRA to their governmental gaming operations.

Listed below are some Indian law cases in which Garland joined the majority panel's opinion.

Garland Track Record In Indian Country






Menominee Indian Tribe of Wisconsin v. U.S.


Indian tribe that operated healthcare system for tribal members pursuant to self-determination contract with the Secretary of Health and Human Services (HHS) brought action against HHS, alleging breach of that contract.

In affirming the dismissal of the tribe's case because it was filed too late, the Court of Appeals held that:

[1] tribe's miscalculation that it would be eligible to participate in class action was not extraordinary circumstance warranting equitable tolling of applicable limitations period

[2] alleged certainty of failure that the tribe faced in bringing its claims was not an extraordinary circumstance that warranted equitable tolling

[3] series of events that tribe faced in bringing its claims did not jointly amount to an extraordinary circumstance

Quantum Entertainment Limited v. Interior


Company that entered into agreement to manage Indian tribe's gas distribution business brought action against Bureau of Indian Affairs (BIA) challenging the decision of Interior Board of Indian Appeals (IBIA) that agreement was null and void.

In affirming that the agreement was null and void, the Court of Appeals held that:

[1] contract that was void ab initio due to failure to procure the Secretary of the Department of Interior's (DOI) approval did not become enforceable upon enactment of new statute

2] company's agreement was with tribe

[3] agreement was "relative to" Native American lands

Vann v. Interior


In a proceeding following a 2008 suit (see below), descendants of freed slaves of the Cherokee Nation of Oklahoma sued the Secretary of DOI, the Cherokee Nation of Oklahoma and its principal chief in his official capacity for allegedly violating treaty freeing Cherokee slaves and their descendants, and guaranteeing them all rights of native Cherokees, including the right to tribal membership and right to vote in tribal elections.

The Court of Appeals held that the suit could proceed against Cherokee's principal chief in his official capacity without the tribe as party.

Jicarilla Apache Nation v. Interior


Indian tribe brought action against the DOI under the Administrative Procedure Act (APA), alleging that the department's rejection of a major portion analysis methodology developed by the Minerals Management Service (MMS) to calculate royalties owed to the tribe pursuant to natural gas leases was an arbitrary and capricious departure from the department's precedent and violated the department's regulations and fiduciary duties.

The Court of Appeals held that:

[1] revised MMS regulations for calculating royalties applied prospectively only

[2] the department's failure to provide a reasoned explanation for departing from precedent rendered its decision arbitrary and capricious

[3] the department's error in retrospectively applying regulations was not harmless

Vann v. Kempthorne


Descendants of freed slaves of the Cherokee Nation sued the Secretary of DOI, the Cherokee Nation of Oklahoma, its tribal chief and other tribal officers, under the APA, seeking injunctive and declaratory relief regarding disenfranchisement from tribal elections.

The Court of Appeals held that:

[1] the tribe was protected by sovereign immunity

[2] suit was not foreclosed against tribal officers under Ex parte Young doctrine

[3] suit was not foreclosed against tribal officers under the Seminole Tribe exception to Ex parte Young doctrine

[4] suit was not foreclosed against tribal officers by tribe's special sovereignty interests

Rosales v. U.S.


Members of Native American village brought action, under the Indian Reorganization Act (IRA) and the APA, against, inter alia, the IBIA, contesting the validity of an amendment to the Constitution of the Village, which lowered the blood-quantum requirement for tribal membership and voter registration.

The Court of Appeals held that plaintiffs who were not registered to vote in the election were ineligible to challenge it before the IBIA.

San Manuel Indian Bingo and Casino v. NLRB


The National Labor Relations Board found that tribal government-owned casino committed an unfair labor practice in violation of the NLRA. The tribe petitioned for review, and the National Labor Relations Board filed a cross-application for enforcement of its order.

The Court of Appeals held that the NLRA applied to a tribal government-owned casino, which operated on the tribe's reservation, employed many non-Indians and catered primarily to non-Indians. Cross-application for enforcement was granted.

Hansson v. Norton


Native American federal employee sued employer for payment of attorney fees incurred in connection with settlement of her employment discrimination claims.

The Court of Appeals held that the District Court lacked subject matter jurisdiction over the federal employee's action seeking attorney fees incurred in settling Title VII action against employer.

Cobell v. Norton


Present and past beneficiaries of Individual Indian Money (IIM) accounts filed class action, alleging gross mismanagement by the Interior and Treasury departments.

The Court of Appeals held that reissuance of an injunction banning statistical sampling was an abuse of the trial court's discretion; even the plaintiffs agreed the injunction should be withdrawn because it was impossible to perform.


Mashpee Wampanoag Tribal Council v. Norton


Tribal council brought action against the Secretary of DOI and others, alleging unreasonable delay by the BIA in issuing a decision regarding its petition for federal recognition completed almost six years earlier.

The Court of Appeals held that the District Court should not have concluded that the BIA had delayed unreasonably, in violation of requirements of the APA, in processing the putative tribe's petition for recognition – based upon number of years that petition had been before the BIA – without first considering the BIA's limited resources and effect of granting relief upon other equally deserving petitioners for recognition.

Ramapough Mountain Indians v. Norton


Group that BIA denied federal recognition as a tribe sought reversal.

The Court of Appeals held that BIA reasonably concluded that the tribal group failed to document that its membership consisted of individuals descended from an historical Indian tribe.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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