Whether Congress eliminated the distinction between 'historic tribes' and 'created tribes' and thereby eliminated the requirement that a tribe must have pre-existed the United States to have tribal immunity

QUESTIONS PRESENTED Petitioners’ challenged the federal approvals of a management contract and gaming ordinance for an Indian casino in Jamul, CA. The Ninth Circuit dismissed Petitioners’ lawsuit on the basis that the Jamul Indian Village (JIV), a quarterblood Indian group, was a necessary party which could not be joined because it supposedly had tribal immunity. JAC v. Simermeyer, 974 F.3d 984 (9" Cir. 2020) Tribal immunity is a common law doctrine established by this Court. It applies only to historic tribes which were “separate sovereigns pre-existing the Constitution.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978). And only Congress has the plenary authority to change, limit or expand the doctrine of tribal immunity. Michigan v. Bay Mills Indian Community, 572 U.S. 782 (2014). The JIV is not a historic tribe that pre-existed the U.S. It was first created as a half-blood Indian village in 1981. In 1982, it was added to the Bureau of Indian Affairs (BIA) list of “Indian tribal entities” eligible to receive services. In 1993, BIA Director Bacon confirmed that the JIV was not a historic tribe. At that time, it was a “created” tribe. But in 1996, the JIV became a quarter-blood Indian group. The Ninth Circuit agreed that the JIV is not a historic tribe and that it is now a quarter-blood Indian group. But the Ninth Circuit also held that these facts are not relevant to tribal immunity because Congress “eliminated the distinction between ‘created’ and ‘historic’ tribes” in 1994, when it enacted three statutes: e Pub. L. No. 103-263, Sec. 5(b) (May 31, 1994) Act amending Section 16 of the Indian Reorganization Act of 1934. (Codified at 25 USC 5123(f)&(g).) e Pub. L. No. 103-357, Sec.1 (Oct. 14, 1994) Act amending 25 USC 1300f(a) to add a designation of the Pascua Yaqui Indians as a “historic Indian tribe.” e Pub. L. No. 103-454, Title I, Secs. 101&103 (Nov. 2, 1994) Act known as the “Federally Recognized Indian Tribe List Act of 1994.” The questions presented by this petition are: 1. Whether, in 1994, Congress eliminated the distinction between “historic tribes” and “created tribes” and, thereby, eliminated the requirement that a tribe must have pre-existed the United States to have tribal immunity 2. Whether the JIV, which became a quarter-blood Indian group in 1996, is a federally recognized tribe, with tribal immunity, by virtue of the fact that it is still on the list of “Indian tribal entities” eligible to receive BIA services. i