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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions