Supreme Court

Furry v. Miccosukee Cert Petition: State Dram Shop Actions and Immunity

Matthew L.M. Fletcher3 Comments

Here:

Furry Cert Petition

Questions presented:

1. Does Justice Brandeis’ opinion in Turner v. United States, 248 U.S. 354 (1919) support the concept of tribal sovereign immunity or should that accidental doctrine, questioned in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), be revised and discarded, at least in the context of tribal alcoholic beverage commercial activities?
2. Do Title 18 U.S.C. § 1161 and Rice v. Rehner, 463 U.S. 713 (1983), exclude tribal alcoholic beverage endeavors from sovereign immunity protection?
3. Does tribal sovereign immunity preclude a suit against an Indian Tribe which has obtained a state liquor license and has operated an alcoholic beverage facility pursuant to that liquor license and in the process has violated state law subjecting a license holder to liability?
Lower court materials here.

“American Indian Legal Scholarship and the Courts” Now Available with Appendices

Matthew L.M. Fletcher

My new paper, “American Indian Legal Scholarship and the Courts,” is now available. I previously posted the appendices, and they are available here.

Here is the abstract:

Is legal scholarship influential on the courts? More particularly, is American Indian legal scholarship influential on the courts? In the 1960s, 1970s, and 1980s, tribal interests enjoyed historic success in the courts. While they didn’t win every case, tribal interests prevailed far more than they ever had prior to these few decades. Since the advent of the Rehnquist and Roberts Courts, however, those successes have once again become few and far between.

American Indian legal scholarship, which rose from virtual nonexistence in the 1950s to significance in the late 1960s and 1970s, appears to have been very influential on the courts during the period of success. Every decade since the 1960s has seen a dramatic increase in the number of law review articles on the subject of American Indian law. Courts cited to an incredible percentage of the Indian law articles published in the 1960s, 1970s, and early 1980s, but that citation pattern has leveled off since the 1980s. The lower courts continue to cite American Indian legal scholarship, but in a more limited manner. In the Supreme Court, Indian law scholarship has all but disappeared.

This short paper, prepared for the Henderson Center’s Fall 2012 Symposium, “Heeding Frickey’s Call: Doing Justice in Indian Country,” presents the data on the citation patterns of American Indian legal scholarship and reviews Professor Frickey’s call as a means of introducing the conference.

Supreme Court GVR’s Murder Conviction of American Indian Juvenile

Matthew L.M. Fletcher

Here is today’s order list — the GVR of Bear Cloud v. Wyoming is on page 4.

Lower court opinion, Bear Cloud v. State, is here.

Goodbear v. Cobell Cert Petition

Matthew L.M. Fletcher1 Comment

Here:

Goodbear v Cobell Cert Petition

Questions presented:

I. Whether a settlement class action can be approved over timely objections interposed by class members when the single point of requisite commonality found by the D.C. Circuit is by definition not a common issue of law or fact applicable to all members of the class.

II. Whether a mandatory settlement class action can be approved over timely objections by a class member that she should be permitted to opt out of the settlement that provides for only a monetary payment?

Contour Spa v. Seminole Tribe Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Contour Spa Cert Petition

Questions Presented:

1. Does Lapides v. Board of Regents of the University System of Georgia, 535 U.S. 613 (2003), provide a basis for finding a waiver of tribal sovereign immunity where an Indian Tribe has expressly waived sovereign immunity, is sued in state court, removes to federal court, and then asserts sovereign immunity based on the Tribe’s concealment of the fact that the Tribe did not comply with the Secretary of the Interior’s lease approval requests?
2. Does Justice Brandeis’ opinion in Turner v. United States, 248 U.S. 354 (1919). support the concept of tribal sovereign immunity or should that accidental doctrine, questioned in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), be revisited and discarded.
3. Does the Indian Civil Rights Act, Title 25 U.S.C. § 1302(a)(5) and (a)(8) create an implicit cause of action permitting the Tribe to be sued for the taking of property without due process of law?
Lower court materials here.

Federal Cert Opposition Brief in Craven v. Cobell

Matthew L.M. Fletcher

Here:

Federal Cert Opp

Fletcher Study on American Indian Legal Scholarship and the Courts

Matthew L.M. Fletcher

I have posted the data so far in chart form for my ongoing study on the impact of American Indian legal scholarship on the judiciary. The draft paper, which will be available on a limited basis at the Berkeley conference on Phil Frickey’s legacy, is called “American Indian Legal Scholarship and the Courts.” The data is available on SSRN here.

Here is the abstract for the appendices:

“American Indian Legal Scholarship and the Courts” is a forthcoming article that includes charts representing data on the citation patters of federal, state, and tribal courts to American Indian legal scholarship (defined as law review and similar publications focused on American Indian law). This paper includes three appendices in the form of simple charts that organize that data. Appendix 1 is a chart of Supreme Court opinions dating back to 1959 that include citations to Indian law review articles. Appendix 2 is a chart of law review articles cited in lower federal, state, and tribal courts since 1959, organized by article. Appendix 3 is the same chart reversed, with the chart organized by case first.

My Reading of The Oath, the New Book on Obama and the Supreme Court

Matthew L.M. Fletcher

Jeffrey Toobin’s new book of historical gossip about the Supreme Court is out, and a very good read. I’ve only made it through the first few chapters (reading last night at the park while Owen ran around with his soccer team, the Jaguars). Two things, only one of which is important.

First, President Obama’s views on the Constitution and the federal judiciary are important, especially to those of us Indians who think it’s important to have an Indian or two on the federal bench. He’s not an activist. The Warren Court and the first half of the Burger Court were activist courts for the liberals, and the second half of the Burger Court, bits and pieces of the Rehnquist Court, and now the Roberts Courts were (are) activist courts for the conservatives. Toobin shows how Obama’s views of the Supreme Court and the federal judiciary differ from many conservative judges and justices (I’m not sure I buy Toobin’s all-in argument that the Chief Justice is an activist — much of this book was written before the ACA cases). True social change cannot come from on high, dictated by the courts, but instead through legislation and governing (i.e., winning elections). Sam Deloria’s been saying this for years. The real fights in the 1960 and 1970s over the very existence of federal Indian law have given way to the fights over how to govern. All too often, I suspect (and perceived from some of my clients), tribal leaders think the best way to govern is to demand more and more sovereignty from the courts. It probably doesn’t happen a lot, but it does happen.

Obama’s views on the constitution and the federal judiciary earn him a lot of heat from the left, who want him to do what the Reagan/Bush presidencies did — pack the judiciary with like-minded people. While I do hope he fills some judicial seats (and finally succeeds in getting some Indians in there) in the next term, Indian country better not expect a bunch of liberal acitivist judges. Even if he could get them through the Senate (he can’t, the filibuster will prevent that), he wouldn’t appoint them. Everyone lining up to put their name on a judicial appointments list of eligible American Indians should think about that before they talk to their Senators or whomever.

Second, and less important, more evidence about how the Supreme Court’s clerks think about Indian law. On page 54, Toobin repeats what everyone knows — the clerks think of Indian law cases as “dogs.” I guess it’s an improvement from when Justice Brennan called the Indian cases “chickenshit” in The Brethren. This is another good opportunity to remind tribal leaders that the Court just isn’t interested in Indian issues. The Court largely believes its obligations in Indian affairs are to make sure that tribal governance doesn’t unduly affect nonmembers and to make sure Interior doesn’t go too far in supporting tribal interests.

SCOTUSBlog Petition of the Day: Arizona v. Inter Tribal Council of Arizona

Matthew L.M. Fletcher

Here. And the materials:

Docket: 12-71
Issue(s): (1) Whether the Ninth Circuit erred in creating a new, heightened preemption test under Article I, Section 4, Clause 1 of the U.S. Constitution (“the Elections Clause”) that is contrary to the Supreme Court’s authority and conflicts with other circuit court decisions; and (2) whether the Ninth Circuit erred in holding that under that test the National Voter Registration Act preempts an Arizona law that requests persons who are registering to vote to show evidence that they are eligible to vote.

Certiorari stage documents:

Cert Petition in Klamath National Forest Endangered Species Act Case

Matthew L.M. Fletcher2 Comments

Here is the petition in New 49’ers Inc. v. Karuk Tribe of Indians:

New 49ers Cert Petition

Questions presented:

  • Whether a federal official’s receipt and review of notice of private action, his exercise of discretion as to whether to invoke agency regulatory powers over such private action, and his decision not to invoke such powers, constitute “agency action” for purposes of § 7(a)(2) of the Endangered Species Act.
  • Whether the federal courts lack jurisdiction over the action in light of changed circumstances.

Lower court materials here (case formerly captioned as Karuk Tribe of California v. USFS).

I don’t know the merits of this petition, but it probably should be denied because of the cheese ball (if not downright tacky) caption here.