Here. Of note, the Department is seeking comments about how Interior can improve its tribal self-governance and tribal economic development programs, etc.
November 10, 2009 is the deadline.
Regulations
Executive Summary of IRS Bonds Notice from Russ Brien
Here is Russ Brien’s summary of the IRS Tribal Bonds notice from last week — 2009-51 ES
ICT on the Politics of the Carcieri Fix (and the Dictionary Act)
From ICT:
WASHINGTON – Excited rumbles trickled through Indian country after a letter to the editor was published recently in Indian Country Today, asking whether a little known legislative doctrine could help reverse the Supreme Court’s ruling in Carcieri v. Salazar.
The writer of the letter, lawyer Joseph E. Bernstein, noted that the Dictionary Act modifies the present tense in all federal statutes to include the future tense, unless the context indicates otherwise.
Given that the court seemingly ruled in contradiction to the law – deciding that the phrase “now under federal jurisdiction” of the Indian Reorganization Act refers to those tribes that were under federal jurisdiction only when the IRA was enacted in 1934 – Bernstein asked whether tribal and federal lawyers could get a rehearing.
Department of Justice lawyers arguing the case hadn’t mentioned the Dictionary Act in their arguments, nor had tribal legal experts, so Bernstein thought they might be able to raise a new point of law focused on the future tense language of the law.
Could it be that simple? Could there really be a quick legal fix to help tribes prevail after the Supreme Court upended many tribal, federal and legal understandings of the IRA by restricting the BIA’s longstanding tribal land into trust process? If not a legal fix, couldn’t Congress just make a fast fix?
Legal and legislative experts say the only thing simple regarding those questions are the answers to them: No, no, and maybe not.
Continue reading
Menominee Motion for TRO Denied in Fee to Trust Challenge
The Eastern District of Wisconsin denied the Menominees motion for a TRO in their challenge to the application of the regulations on off-reservation gaming. The complaint is here.
Crosby Lodge v. NIGC — Facial Challenge to 25 CFR 522.10(c) Rejected
Crosby Lodge is licensed by Paiute Lake Indian tribe to conduct Class III gaming. Under the regulation, they owe at least 60 percent of revenues to the tribe. The company challenged the reg, and lost.
Post-Judgment Motion in Indian Preference Case — Indian Educators Federation v. Kempthorne
This case, decided in April and reported here (see opinion and materials), is in the D.C. district court. Now the question is whether the plaintiffs, who prevailed in April, are entitled to a preliminary injunction demanding the Secretary comply with the order the way the plaintiffs want, or whether the Secretary can comply in his or her own manner. The court denied the union’s motion.
ief-motion-for-preliminary-injunction
Alabama v. United States Materials
The Southern District of Alabama dismissed Alabama’s challenge to the Department of Interior’s Class III procedures, on grounds of ripeness.
Here is the opinion, courtesy of Indianz.
St. Croix Band v. Kempthorne Materials
Here are many of the pleadings in the St. Croix Band v. Kempthorne case reported earlier today (opinion).
us-motion-to-dismiss-st-croix-complaint
st-croix-opposition-to-govt-motion-to-dismiss
st-croix-supplemental-memorandum
2008 Term Preview: The Long Conference — September 29, 2008
On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.
1. Hawaii v. Office of Indian Affairs (07-1372)
This petition has a fairly good chance to be granted.
The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).
2. Ho-Chunk Nation v. Wisconsin (07-1402)
I don’t think this one has much chance to be granted.
It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)
3. Kemp v. Osage Nation (07-1484)
This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.
Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.
4. Kickapoo v. Texas (07-1109)
This one has a slight chance for a grant.
I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.
Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.
5. Klamath Tribes v. PacificCorp (07-1492)
This one has no chance.
First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦
6. Matheson v. Gregoire (08-23)
Again, no chance.
First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.
7. South Fork Band v. United States (08-100, 08-231)
No chance.
This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.
8. United States v. Navajo Nation (07-1410)
Very, very good chance for a grant.
First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).
Either way you have a grant.
Carcieri v. Kempthorne: Amicus Briefs Supporting the Respondent
They’re here, courtesy of the Supreme Court Project:
In support of Respondents:
Amicus Brief of Narragansett Indian Tribe
Turtle Talk 
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