Here is the order list.
The Second Circuit decision at issue is here.
Author: Matthew L.M. Fletcher
Reuters Article on Certiorari and the Supreme Court Bar
Here is “The Echo Chamber.”
An excerpt:
The rise of the Supreme Court specialty bar is not universally embraced by the profession. But it is by the justices. Two, in particular, lamented the refusal of some criminal defense lawyers to turn over high court cases to specialists.
“It is as if they are arguing with one hand tied behind their back,” Kagan said.
Said Justice Sonia Sotomayor: “I think it’s malpractice for any lawyer who thinks this is my one shot before the Supreme Court and I have to take it.”
SCOTUSBlog interviewed Joan Biskupic, who led the reporting team.
Partially Split Ninth Circuit Panel Adopts New Two-Part Test to Determing Federal FTCA Liability for Tribal Employee Actions under Self-Determination Compacts
Here are the materials in Shirk v. United States:
From the court’s syllabus:
The panel vacated the district court’s dismissal for lack of subject matter jurisdiction of a Federal Tort Claims Act action brought against the United States after Jennifer Rose was injured in a traffic accident following a police pursuit involving two tribal police officers employed by the Gila River Indian Community.
Loren Shirk, along with his wife, Jennifer Rose, alleged negligence by the tribal officers and loss of consortium under the FTCA. Congress extended the FTCA’s waiver of the United States’ sovereign immunity to claims resulting from the performance of functions authorized by the Indian Self- Determination and Education Assistance Act of 1975, commonly referred to as § 314.
To decide whether the tribal officers’ conduct was covered by § 314, thereby subjecting the United States to potential tort liability, the panel held as an issue of first impression, that it was first necessary to set out the analysis that courts should undertake when confronted with a § 314 claim where the alleged tortfeasors are employees of a tribe, tribal organization, or Indian contractor. The panel held at the first step of the § 314 inquiry, courts must determine whether the alleged activity is, in fact, encompassed by the relevant federal contract or agreement. At the second step, courts must decide whether the allegedly tortious action fell within the scope of the tortfeasor’s employment under state law. The panel held that if both of these prongs were met, the employee’s actions were covered by the FTCA; but a plaintiff’s failure at either step was sufficient to defeat subject matter jurisdiction. The panel remanded so that the parties could fully brief the issue and the district court could conduct a new analysis of its subject matter jurisdiction using this two-step framework.
Second Circuit Judge Sack concurred, and wrote only to register his doubts as to one of the district court’s conclusions which the panel’s opinion properly did not reach. If the panel were squarely presented with the issue, Judge Sack would conclude that the relevant agreements between the federal government and the tribe authorized the enforcement of Arizona state law by tribal police officers.
Judge Bea concurred in part, and dissented in part. Judge Bea agreed with the new two-part test articulated by the majority opinion, but he would not remand because there are no issues of fact that require remand.
Split Ninth Circuit Panel Dismisses Uncounseled ICRA Habeas Claim for Failure to Exhaust Tribal Remedies
Here are the materials in Alvarez v. Tracy:
From the court’s syllabus:
The panel affirmed the district court’s denial of a habeas corpus petition brought pursuant to the Indian Civil Rights Act, 25 U.S.C. § 1303 (ICRA), and 28 U.S.C. § 2241, in which Fortino Alvarez challenged convictions and sentences imposed by the Gila River Indian Community tribal court.
The panel declined to exercise jurisdiction over Alvarez’s claims and affirmed the denial of the habeas petition because Alvarez failed to exhaust his claims by bringing them first to the tribal courts, and did not demonstrate that unavailability or futility of direct appeal excuses the exhaustion requirement or that the Community’s appeals process did not comply with the ICRA.Although the Community failed to raise Alvarez’s lack of direct appeal in its motion to dismiss, the panel considered the defense under Wood v. Milyard, 132 S. Ct. 1826 (2012), and Granberry v. Greer, 481 U.S. 129 (1987), and concluded that the strong comity and judicial efficiency interests at stake warrant federal abstention.
Dissenting, Judge Kozinski wrote that the majority does not live up to its solemn responsibility to appear impartial, when it forgives the Community, which was represented by counsel, for failing to raise an exhaustion defense in district court or on appeal, but holds Alvarez to his single oversight of failing, while unrepresented before the Community court, to raise his jury trial and confrontation claims by way of a direct appeal. On the merits, Judge Kozinski would find that the Community violated Alvarez’s right to a jury trial under ICRA by failing to inform him that he needed to request a jury, a structural error fatally undermining the conviction.
Judge Kozinski added:
I have read the opinion many times and disagree with pretty much everything in it, including the numerals and punctuation. I explain why in the pages that follow, but first I pose a more basic question: How can a court committed to justice, as our court surely is, reach a result in which the litigant who can afford a lawyer is forgiven its multiple defaults while the poor, uneducated, un-counseled petitioner has his feet held to the fire? I attribute no ill will or improper motive to my excellent colleagues. They are fair, honorable and dedicated jurists who are doing what they earnestly believe is right. But we see the world very differently.
Eighth Circuit Judge Bright Names Disproportionate Sentences of Native Convicts as “Biggest Challenge Today”
Here, from Hercules and the Umpire, and How Appealing.
The Guardian: “Forgotten Native American musicians: ‘We could have been the next Nirvana'”
Here.
National NALSA Resume Book Announcement
NNALSA Releases 2014 Resume Book
The 2014 National NALSA Resume Book is now available for employers to connect with NNALSA students! Employers can use their NNALSA private login to download resumes of 1L, 2L, 3L, or NNALSA alumni based on what type of job or internship opportunities you have available.
As a reminder, employers can also use their private login to post job opportunities to reach NNALSA students that have not submitted resumes. If you are an employer and have not yet created a private login, you can contact the NNALSA National Liaison, Aarik Robertson, for the invitation code at nnalsa.liaison@gmail.com.
To create your login after you receive the invitation code, visit the National NALSA website at http://www.nationalnalsa.org and click Register in the upper right-hand corner of the page.
National NALSA Moot Court Sign-Up Reminder
Don’t miss your opportunity to be a part of the 23rd Annual NNALSA Moot Court Competition! Team registration closes on December 13, 2014. The registration form can be found on the Moot Court website at http://www.law.arizona.edu/iplp/moot_court/.
The competition will be held on March 6-7, 2015, at The University of Arizona James E. Rogers College of Law campus in Tucson, Arizona. Additional details can be found at http://www.law.arizona.edu/iplp/moot_court/.
Fifth Circuit Decides Bankruptcy Matter Involving Interpretation of Navajo Law
Here are the materials in In the Matter of Vallecito Gas LLC (Morton v. Yonkers):
This is a Chapter 11 bankruptcy trustee who was trying to void overriding royalty interests purchased by third parties from a Navajo Tribe, but without approval by the Navajo Nation as per the Navajo Code. The Court agreed with the Bankruptcy Court that the Trustee could not raise the lack of Navajo approval as an impediment to the validity of the underlying transfer of the overriding royalty interests. Although the Navajo Code requires the approval from the Navajo Nation for such transfers, the Court reasoned that because the Navajo Code does not serve to protect the Trustee’s interests, but rather to protect the Navajo Nation from exploitation, the Trustee was not permitted to raise the lack of approval.
Arizona State Law to Host Conferences on Tribal E-Commerce and Indian Country Health Care
Here:
Inaugural Tribal Government E-Commerce: Innovating a New Geography of Indian Country CLE Conference
Date: February 12, 8:00 a.m. – 5:30 p.m. & February 13, 8:00 a.m. – 5:15 p.m.
Place: Wild Horse Pass Hotel & Casino Resort, Chandler, AZ
Contact: Darlene Lester at darlene.lester@asu.edu or (480) 965-7715
Click here for Agenda & Registration Early Rate ends Jan 9. Register Early (Limited Seating)
Banquet Reception: Thursday, February 12, 6:30 p.m. – 8:30 p.m.
Many tribes have recently become involved in pursuing business operated over the Internet. These E-Commerce opportunities have not only created thriving economies, but they have also led to a tangled web of legal issues where state, tribal and federal laws and policies are colliding. The quick growth of E-Commerce in Indian Country has outpaced a general understanding of how E-Commerce law is intertwined with federal Indian law especially as it may relate to States’ rights.
The goal of this conference is to explore the legal issues surrounding the development of E-Commerce in Indian Country including: jurisdictional complexities and the necessity of fostering open dialogue with federal and state counterparts, the possible implications to tribal sovereignty, and the ongoing need for tribes to build infrastructures that facilitate economic growth on their reservations while complying with appropriate federal guidelines.
This conference will bring together tribal leaders and officials, lawyers practicing in Indian country, on and off reservation economic planning and development experts, business and finance specialists, virtual casino managers and executives, online vendors and entrepreneurs, regulatory experts and cutting‐edge scholars to explore the legal issues of tribal E-Commerce.
Opportunities and Challenges to Providing Health Care in Indian Country CLE Conference
Date: Thursday, February 26, 8 a.m. – 5 p.m. & February 27, 9 a.m. – 12 p.m.
Place: Sandra Day O’Connor College of Law / Great Hall / Armstrong Hall / Tempe ASU
Contact: Danielle Williams at danielle.williams.1@asu.edu or (480) 965-2922
Click here for Registration & Agenda Early Rate ends Jan 16.
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