News

The Atlantic: On Snyder v. Phelps and First-Timers Arguing in the SCT

Matthew L.M. Fletcher

From the Atlantic:

Lawyers with no Supreme Court experience sometimes insist on going to the Show. The result can be a halting hour of argument that sometimes resembles the 1945 World Series, between two teams so war-depleted that sportswriter Warren Brown said, “I don’t think either one of them can win it.”  [opening]

* * *

Alas, there’s really no need for a theological conspiracy theory. Trial lawyers often really do love their own clients and hate the people on the other side, and often can’t shut up about it. Which it is why both sides would have done better to find dispassionate appellate lawyers, who might have saved us from the possibility that a disgusted Court may make a bad decision.  [ending]

TT Note: BTW, the Detroit Tigers won the 1945 World Series. Go Tigs!

 

NYTs on the Increasing Importance (and Criticism) of the “Supreme Court Bar”

Matthew L.M. Fletcher

From the NYTs:

umberto Fernandez-Vargas, deported to Mexico, had run out of options. A federal appeals court said he could not return to the United States to live with his American wife and son. And his lawyer did not have the expertise or money to pursue the case further.

Then the cavalry arrived. Leading lawyers from around the country, sensing that the case was one of the rare ones that might reach the Supreme Court, called to offer free help. Mr. Fernandez-Vargas’s immigration lawyer was delighted, and he chose a lawyer from a prominent firm here.

But there was a catch, and then a controversy. The catch was that the Washington lawyer, David M. Gossett, would take the case only if he could argue before the Supreme Court himself.

The controversy was that groups representing immigrants were furious, suspicious of the new lawyer’s interest in the case and fearful of a Supreme Court ruling that would curtail the rights of immigrants nationwide.

Indeed, Mr. Gossett faced a barrage of hostile questions from the justices, and in June 2006 the court ruled against his client, 8 to 1. The ruling wiped out decisions in much of the nation — notably from the federal appeals court in California — that had favored immigrants.

Mr. Gossett is among an increasingly influential cadre of lawyers specializing in Supreme Court cases, attracted to the importance and intellectual challenge of the work. Many are willing to serve without charge to draw prestige and paying clients to their firms.

Thirty years ago, 6 percent of cases accepted by the court were brought by lawyers specializing in Supreme Court advocacy, according to data compiled by Richard J. Lazarus, a law professor at the Georgetown University Law Center and faculty director of its Supreme Court Institute.

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News Coverage of Sault Tribe v. Bouschor Jury Pool Debacle

Matthew L.M. Fletcher2 Comments

From ICT:

By John Hatch

SAULT STE. MARIE, Mich. – A former Michigan tribal chairman has convinced a state circuit court judge to ban all members of his tribe from the jury pool in a civil suit filed to recover $2.66 million in severance pay the chairman paid to his top aides after losing a bid for a fifth term as the leader of the Sault Ste. Marie Tribe of Chippewa Indians.

Court records show that Chairman Bernard Bouschor’s motion to disqualify tribal members and employees said that “virtually every tribe member is related to one of the participants.” That he had already been convicted by the tribe in what he stated to be a “kangaroo court completely controlled and orchestrated by tribal management. Such persons should not sit in judgment of the case.” And, that all tribal members and tribal employees have a financial interest in the outcome of the trial.

Visiting 50th Circuit Court Judge Charles Johnson confined his order to Bouschor’s last point, finding that because membership in an Indian tribe is a voluntary act. Just like stockholders in a corporate law suit, state law mandates such closely-connected people cannot sit as jurists.

His June 15 order states “that members of the plaintiff tribe have a financial interest” in the outcome of the case and they were “disqualified from serving on the jury.” The trial is set for Oct. 13, at the Chippewa County Court House in the City of Sault Ste. Marie.

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Update on Federal Circuit Nominees and Possible Vacancies

Matthew L.M. Fletcher

From law.com (via How Appealing):

President Barack Obama’s recent nomination of Jimmie Reyna for one of three vacancies on the U.S. Court of Appeals for the Federal Circuit covers all open slots and adds a candidate with deep international trade expertise. But court watchers expect that at least two of the confirmations to the 12-judge court, including Reyna’s, will stretch into next year.

On Sept. 29, Obama nominated Reyna, who directs the international trade and customs practice group and the Latin America task force in the Washington office of Williams Mullen. Reyna also served as the Hispanic National Bar Association’s president for its 2006-2007 term.

The other nominees include a federal judge and an appellate specialist. In March, Obama nominated Judge Kathleen O’Malley of the Northern District of Ohio.

In April, he nominated Edward DuMont, a partner in the Washington office of Wilmer Cutler Pickering Hale and Dorr.

Reached at his Washington office, Reyna said he’s “honored at having been nominated” and “I look forward to the confirmation process.” According to a statement from Williams Mullen’s president and chief executive officer, Thomas Frantz, the firm is proud that Obama recognized Reyna’s record of service by nominating him to the Federal Circuit. “A natural leader with legal acumen and grace, Jimmie has served the firm and its clients with distinction for twelve years,” Frantz stated.

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NARF Press Release on the Supreme Court’s Denial of Cert in the Kaltag Tribal Council Case

Matthew L.M. Fletcher

Here: Kaltag press release

Shinnecock Wins IBIA Appeal — Become 565th Federally Recognized Tribe — UPDATED with IBIA Decision

Matthew L.M. Fletcher1 Comment

Here is the IBIA decision: 38553324-Shinnecock-Decision

Here is the news article:

The Shinnecock Indian Nation received word Friday afternoon from its tribal attorneys that it is now officially the 565th Native American tribe to earn recognition from the U.S. government, according to Shinnecock Tribal Trustee Lance Gumbs.

Though neither the Interior Board of Indian Appeals or the Bureau of Indian Affairs has yet to formally announce the news, the Shinnecock Nation has cleared all the hurdles to federal recognition, the trustee said.

“The first day of October will live forever in the hearts and minds of the Shinnecock people,” Mr. Gumbs said in an phone interview Friday. “Everyone is just relieved and shedding tears for not only us who are here, but those who just missed it,” he said. He explained that some Shinnecock elders have died since July 19, when the tribe’s recognition application was originally expected to be finalized.

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News Coverage of Shomin v. GTB Election Board

Matthew L.M. Fletcher

From Indianz:

The tribal court of the Grand Traverse Band of Ottawa and Chippewa Indians of Michigan disqualified a winning candidate from holding public office.

The court said Alvin Pedwaydon violated election law because he sits on a committee that determines the salaries of tribal council members. “I am simply shocked,” told The Leelanau Enterprise in response to the decision.

Pedwaydon was the top vote-getter in the last three elections. He indicated he might pursue an appeal.

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BLT: Cobell Lawyers Optimistic re: Settlement

Matthew L.M. Fletcher

From BLT:

The plaintiffs’ attorneys in a long-running Indian trust suit in Washington say they remain confident Congress will approve the $3.4 billion settlement, despite adjournment in the U.S. Senate yesterday without a vote.

The settlement, first announced last December, stalled in Congress amid concern over attorneys fees and equitable distribution of funds to potentially hundreds of thousands of class members.

The suit in the U.S. District Court for the District of Columbia, filed in 1996 by lead plaintiff Elouise Cobell, sought a historical accounting of billions of dollars held in trust by the federal government for accounts tied to oil, natural gas, minerals and timber.

The terms of the settlement have been changed to garner support among Senate Republicans, a lead attorney for the plaintiffs, Washington solo practitioner Dennis Gingold, said today. “There is reason to be optimistic,” Gingold said. “We uniquely have bipartisan support in an environment where you don’t see that often.”

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Eagle Rock Protester Sentenced

Matthew L.M. Fletcher

From the Mining Journal:

MARQUETTE – Keweenaw Bay Indian Community member Charlotte Loonsfoot received a 30-day delay of sentence today on a misdemeanor trespass charge involving a May protest of the Kennecott Eagle Minerals Company at Eagle Rock.

Loonsfoot, 37, of Baraga pleaded no contest today to the charge in Marquette County District Court. If she abides by all terms of the 30-day delay, the prosecution has agreed to dismiss the charge.

Defense attorney Karrie Wichtman of the Lansing firm of Rosette and Associates said the no contest plea allowed Loonsfoot to admit no wrongdoing.

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Rob Porter & Stephen Pevar Quoted in NY Post

Kate Fort

The NY Post has an unfortunate and not representative headline for the body of the article.  Which I suppose is hardly a surprise, given the publication:

Indian reservations a land of the freebie
By JENNIFER FERMINO
Last Updated: 10:11 AM, September 27, 2010

Bargain-priced butts, cheap gas and gambling casinos get all the attention, but life on an Indian reservation includes other lifestyle elements that are as foreign as the Wild West to most New Yorkers.

Step onto an Indian reservation and you’re leaving the United States and entering a sovereign nation that includes free health care, a tribal justice system with its own courts, jails and police — and even separate license plates and passports.

The state’s knockdown, drag-out fight with Indians over untaxed cigarettes has thrust the debate over their sovereignty — based on decades-old treaties between the federal government and the tribes — back into the headlines.

The reservations operate as nations within a nation, with tribes dealing directly with the feds on a government-to-government relationship.

Indians who live and work on one of the country’s 300-plus federally recognized reservations are exempt from paying state income taxes, but usually they are required to pay all federal taxes.

However, if a citizen of one of the 564 federally recognized tribes works off of the reservation, they are required to pay state taxes, no matter where they live.

Those who live on any reservation don’t have to pay state property taxes, but they might have to fork over some kind of tribal fees.

And state sales taxes are not levied on Indians who make purchases on a reservation — hence the low price of cigarettes and gas that attract non-Indians to the reservations.

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