Turtle Talk

There are still no grants this Term (with the quasi-exception of the Samish case) but there have been a flurry of petitions in the last few weeks that have a small to middling chance of being granted. They are presented here in no special order.

Adoptive Couple v. Baby Girl (No. 12-399)

This is that ICWA case decided by the South Carolina Supreme Court in which the non-Indian adoptive parents (the petitioners) hired a PR company to make ICWA, the Cherokee father, and the South Carolina Supreme Court look bad — Dr. Phil took the bait. No split, no issue of national importance (unless Paul Clement’s retention and Dr. Phil make a case nationally important — it may, I suppose), ICWA’s plain language supports the S.C. court’s decision — I don’t see much chance of this case being granted. I might expect a CVSG, however, since it’s a federal statute in question.

Petition and GAL amicus. My commentary on the petition is here.

Questions:

(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law. (2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.

Young v. Fitzpatrick (No.11-1485) — CVSG (October 2012)

The Court has asked the SG’s office for its views (a CVSG). It doesn’t appear to be the kind of case that recurs, although with expanding tribal governance capacity it might, and appears to involve the interpretation of a single, relatively narrow treaty provision. There certainly isn’t a split now, and I doubt there ever will be. Seems like a classic case of leave it be and see what happens next, with an expectation that if these issues recur, the Court will have the benefit of other lower court decisions to review.

The questions:

(1) Whether police officers, employed by the Puyallup Indian Tribe, but trained, certified, and cross-commissioned by the state of Washington, and armed, equipped, and provisioned by the United States, are subject to the Constitution, U.S. civil rights laws, and state tort law; (2) whether the Shelter or Conceal Clause of the Treaty of Medicine Creek, and additional sources of federal and state law, preempts any claims of qualified immunity by individual Puyallup tribal police officer defendants in a suit for violation of the Constitution, U.S. civil rights laws, and state tort law.

SCOTUSblog has the briefs so far.

Michigan v. Bay Mills Indian Community (No. 12-515)

This is the effort by the State of Michigan to stop the Vanderbilt casino opened on fee land by the Bay Mills Indian Community. Little Traverse Bay Bands of Odawa Indians had been a partner in the effort (BMIC had opened its casino right on LTBB’s doorstep and cost them about a hundred grand or more a month in revenues), but apparently doesn’t want to partner in this fairly anti-tribal petition. I opined on the alleged split here and here — I conclude that any split is probably illusory. Also, the casino is closed, and the State has filed an amended complaint that might cure the jurisdictional deficiencies below, rendering the petition irrelevant. Still, there’s a decent chance for a CVSG, since it’s a federal statute at issue (and frankly the lack of an adequate federal response in the first place).

Questions:

1. Whether a federal court has jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands. 2. Whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside Indian lands.

Cobell Petitions (Craven v. Cobell & Good Bear v. Cobell) (Nos. 12-234 & 12-355) — UPDATE — cert denied today in Craven petition.

The Supreme Court has never granted cert in a Cobell-related petition (for which tribal advocates should breathe a huge sigh of relief) and I doubt this is the exception. But still, the chance is there, however unlikely. We will find out in a couple weeks — the Conference date for these petitions is November 9. With all due respect to the petitioners and others who view the Cobell settlement as a bad thing (like any massive settlement, there are all sorts of winners and losers), absolutely nothing good for Indian country can come from a grant in the Cobell case. A grant and reversal merely reopens the settlement (I think) and there’s no reason to believe Congress or the federal district court will do anything to solve the inequities. Lawyers are going to get paid, though. Count on it. The downside for Indian country — imagine the worst, and then triple it. I’m still wondering whether those objecting to the settlement have a Fifth Amendment takings claim after it’s all over — and if so, I imagine the damages will be minor. Oh well.

More on the update: Good Bear is still pending. An interesting point in the Craven petition — both the Chief Justice and Justice Kagan recused — Roberts as a D.C. Circuit judge and Kagan as SG both must have worked on Cobell. Makes it hard to get four votes for cert when only 7 justices involved.

Questions (from the Craven petition; Good Bear petition here):

1. Whether a court may impose on an objector the burden to provide evidence of a structural conflict where it concedes that the defendant’s conduct has destroyed any such evidence.2. Whether the payment of incentives to named plaintiffs of an amount more than eighty times the award due each class member compromises their ability to adequately represent the class at settlement.

Furry v. Miccosukee (No. 12-376)

This is one of those tribal immunity from dram shop actions that pops up again and again. So far, there is no split in authority of note (in other words, the two cases to the contrary are compact-specific) and the Court has already denied similar petitions (here and here). Usually, asking the Supreme Court simply to reverse itself doesn’t get you anywhere. It looks like the tribe has waived its right to respond. You might see a call for response here.

Questions (petition here):