Supreme Court 2006 Term

The Supreme Court's October 2006 Term may shape up to be one of the most critical Terms for Indian law in several years.

First, the Court may decide to take the fee-to-trust cases where the States of Utah and South Dakota are directly challenging the constitutionality of the statute authorizing the Secretary of Interior to take land into trust for Indians and Indian tribes. In the 1990s, the Court, over a strident dissent from Justice Scalia, vacated an Eighth Circuit decision (69 F.3d 878) declaring the statute unconstitutional.

Second, the Court may decide to hear Morris v. Tanner and/or Means v. Navajo Nation, cases challenging the validity of the Duro Fix. If you thought U.S. v. Lara answered this question, think again. Two of the Justices in the seven-justice majority have departed and two others in the majority (Thomas and Kennedy) wrote concurrences suggesting they would be glad to revisit the question if a nonmember Indian brought a challenge to a tribal court conviction (which Lara neglected to do).

And, third, though it may be a Term away, the NLRB v. San Manuel case may be decided by the D.C. Circuit this fall, paving the way for a petition for cert. in the winter.