SCOTUSBlog Petitions to Watch for the “Long Conference” and Commentary

Matthew L.M. Fletcher

Three petitions have made the famed SCOTUSblog list of petitions to watch for the long conference today. We wonder whether virtually every Indian law related case makes the list these days, but that’s not really true.

Interesting cases that are on the docket but don’t make the list are Fort Peck v. HUD (10-195), Maybee v. Idaho (09-1471), Metlakatla v. Sebelius (09-1466), and Schaghticoke v. Salazar (09-1433). Note that all four of these petitions were filed by tribal interests. As we say every time, note the general trends in Indian law cases in the Supreme Court petition stage: (1) the United States’ petitions are granted about 2/3 of the time, or more; (2) petitions by states and their subdivisions are granted about 1/3 of the time; (3) petitions by tribes are almost never granted. And even the OSG’s influence wanes when supporting tribal interests.

Other cases that rightfully do not belong on this list include Hoffman v. Sandia Pueblo (10-4) for reasons we’ve already discussed.

Here is the link, and the SCOTUSblog coverage of each petition:

Title: Gould v. Cayuga Indian Nation
Docket: 10-206
Issue(s): 1) Whether, on a matter that it believed the Supreme Court had not yet addressed, the New York Court of Appeals properly interpreted federal law in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance; and 2) whether the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua, notwithstanding that the Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.

Certiorari-Stage Documents

Title: Iron Thunderhorse v. Pierce
Docket: 09-1353
Issue(s): Whether the court of appeals misinterpreted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., to require only a minimal showing that a prison grooming rule which concededly imposes a substantial burden on religious exercise is the “least restrictive means of furthering [a] compelling governmental interest.”

Certiorari-Stage Documents

Title: Hogan v. Kaltag Tribal Council
Docket: 09-960
Issue(s): Whether Indian tribes in the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a nonmember and then to compel the State to give full faith and credit to the decrees entered in those proceedings.

Note!!!!: There is a great deal of dispute as to the question presented in this case. Both the tribal interest here and the United States dispute the question presented by the State, which plays a little loose with the facts. Here is the government’s statement of the question presented:

Whether, for purposes of the Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq., a tribal court has
concurrent jurisdiction with state courts to initiate and adjudicate a child-custody proceeding about an Indian child, when the child and her biological mother are tribal members and the nonmember biological father does not object to tribal-court jurisdiction, and when the child is not domiciled or residing within a reservation.

Certiorari-Stage Documents