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Supreme Court takes up first Indian law case of October 2015 term

Friday, December 4, 2015

The Menominee Tribal Clinic in Keshena, Wisconsin, operates with funds from a self-determination contract. Photo from MTC

The U.S. Supreme Court heard its first Indian law case earlier this week as the justices took up the complex and contested issue of contract support costs for the third time in a decade.

But unlike the two prior cases -- which were decided in favor of tribal interests -- this one didn't appear to go so well. During the 42-minute hearing, Menominee Nation of Wisconsin faced skeptical questions about its failure to submit timely contract support cost claims to the Indian Health Service.

Attorney Geoffrey D. Strommer acknowledged that certain claims weren't presented within six years as required by the Contract Disputes. But he argued that the tribe is entitled to "tolling" -- a hold, essentially -- because those two prior cases had not been fully resolved.

"If there is such a case, the facts of this case really should satisfy this test," Strommer told the court on Tuesday.

Indianz.Com SoundCloud: U.S. Supreme Court Oral Arguments in Menominee Indian Tribe of Wisconsin v. United States

The justices, however, did not seem to agree. The ones who spoke during hearing said the tribe should have known better than to wait for those earlier cases to be resolved. They also suggested that the tribe got itself into the situation by relying on faulty advice from attorneys.

"So you're really arguing a remarkable proposition -- that if you get bad legal advice, that justifies equitable tolling," said Justice Antonin Scalia.

The comments from Scalia were characteristically hostile -- he almost always goes against tribal interests. But the questions from the even more sympathetic members -- Justice Sonia Sotomayor and Justice Elena Kagan -- sounded just as skeptical.

"I have a sense that the tribe was concerned about its resources and that they were just getting together and talking about this and deciding, we're not going to win under the law, so we're not going to file," Sotomayor observed.

A view of the U.S. Supreme Court. Photo by Indianz.Com

The Obama administration focused on that line of thinking during its turn before the justices. Ilana H. Eisenstein, an assistant to the Solicitor General at the Department of Justice, said the tribe purposely waited to present its claims and is now paying for that "strategic" mistake.

"The miscalculation that it made about whether the clear deadline could be extended by class action tolling, that was a routine litigation mistake, the kind that is far from the sort of extraordinary circumstance that could warrant equitable relief," Eisenstein said of the tribe.

The reaction from the court indicates that the long delay -- 707 days, Strommer acknowledged when asked by Justice Samuel Alito -- will work against the Menominee Nation. Although the justices sometimes appeared to mix up the dates of the prior contract support cost cases, timing was clearly a big issue during the hearing.

The first contract support costs case that went to the Supreme Court was Cherokee Nation v. Leavitt. The justices granted the petition in March 2004 and even if the Menominee Nation wasn't sure of the outcome, the tribe presumably could have still satisfied the six-year deadline and presented a claim for shortfalls covering the year 1998.

The petition in the case was filed in April 2003, according to the docket sheet, so the tribe presumably could have met the deadline for 1997 had it presented a claim at the time. Strommer said the Menominee Nation was kept informed by the Cherokee Nation attorneys throughout the litigation but chose to wait anyway.

The tribe finally presented its claims after the Supreme Court issued its decision in March 2005. As a result, the D.C. Circuit Court of Appeals determined that the shortfalls for the years 1996, 1997 and 1998 cannot be recovered because the six-year deadline in the Contract Disputes Act already passed.

The second contract support costs case was Salazar v . Ramah Navajo Chapter from June 2012. The tribe is part of that case and is due to receive a share of a $940 million settlement, Strommer told the court.

Another Analysis:
Justices dubious of tribe’s claim for equitable tolling in government contract dispute (Scotusblog 12/2)

Relevant Documents:
Transcript: Menominee Tribe of Wisconsin v. United States (December 2, 2015)

DC Circuit Court of Appeals Decision:
Menominee Indian Tribe of Wisconsin v. USA (September 2, 2014)

Federal Circuit Court of Appeals Decision:
Arctic Slope Native Association v. Sebelius (November 9, 2012)

Supreme Court Decisions:
Salazar v. Ramah Navajo Chapter (June 18, 2012)
Cherokee Nation v. Leavitt (March 1, 2005)