Supreme Court

Turtle Talk Greatest Cases Round of 16 — First Series Match-ups

Matthew L.M. Fletcher2 Comments

We’ve moved on to the next pairings in the Round of 16 (or octofinals or whatever). Here is the first set of pairings (vote before 1 PM eastern/10AM pacific Tuesday):

(1) Worcester v. Georgia (31US515) vs. (16) Santa Clara Pueblo v. Martinez (436US49)

These two cases are big time heavy hitters.  Worcester mopped the floor in the first round with Ramah Navajo Chapter, and Martinez eeked out a close one with Fishing Vessel. So far, this tournament has rewarded older cases far more than recent cases. In fact, the most recent remaining case is from 1984. But Martinez is one of the greatest. I imagine will be close. As if it matters, but Worcester has been cited 812 times in court cases, and Martinez in 1095 cases.

(8) Arizona v. California (373US546) vs. (9) Menominee Tribe v. United States (391US404)

Arizona barely got past Iowa Mutual in the last round, and now faces Menominee Tribe, a fan favorite (I am that fan), which wiped out Onieda II last time out. These are both treaty rights cases, so in a sense, there’s a decent comparison. Which one impresses people more? Hunting and fishing, or water?

(4) Talton v. Mayes (163US376) vs. (20) Merrion v. Jicarilla Apache Nation (455US130)

Talton barely sneaked past Kiowa Tribe in the opening round, while Merrion won over Mazurie in one of the biggest landslides in the tournament so far. I think of Talton as being one of those cases that sounds good to law students, but ends up being the reason tribal interests lose cases like Plains Commerce Bank. Merrion is a core sovereignty case. Which impresses observers more? Sovereignty as a defense, or sovereignty as governance.

(5) United States v. Winans (198US371) vs. (12) Morton v. Mancari (417US535)

Winans slipped past Sac & Fox last round in of the closer match-ups. Does anyone even remember what it stands for, or is it that so many Oklahomans are voting? Winans will face a tough test in Mancari, the case that persuaded tribal interests to argue that if it helps Indians it’s political, and if it hurts them, it’s racism.

Marceau v. Blackfeet Housing Authority Cert Petition

Matthew L.M. Fletcher3 Comments

Here:

Marceau Cert Petition

Questions presented:

1) Whether the Ninth Circuit misconstrued and misunderstood requirements for finding a Federal Trust Responsibility to Indians. Is the pervasive role of the federal government based on the administration of the law as well as the letter of the law?
2) Is there a conflict in the Circuits on this issue? Compare Brown v. United States, 86 F.3d 1554, 1560-61 (Fed. Cir. 1996) and other cases in the Federal Circuit with the decision of the Ninth Circuit in this case below (Marceau III, 540 F.3d 916, 928 (9th Cir. 2008).
3) Is there a special burden on the federal government as it relates to Indian Housing in view of the Congressional Acts on Housing, the disadvantage to Indians caused by the Indian Allotment Act which prohibits Indians from holding title to their land, and the Indian Trust Responsibility of the federal government?
4) Was the Ninth Circuit wrong in summarily dismissing Plaintiffs’ APA claim as time barred when the true state of affairs was not discovered until well within the statute of limitations? Was the Ninth Circuit wrong in not considering the federal Indian Trust Responsibility in connection with this decision?
5) Was the Ninth Circuit wrong in holding that HUD had no duty to act on a specific request of the Housing Authority and the Blackfeet Tribe to “fix it?” Was the Ninth Circuit wrong in not considering the federal Indian Trust Responsibility in connection with this decision.
Lower court materials here.
The Supreme Court denied cert in an earlier stage of this litigation here.

Samish Indian Nation Cert Opposition Brief in Trust Breach Case

Matthew L.M. Fletcher

Here:

Samish Cert Opp

The cert petition is here.

Lower court materials here.

Turtle Talk Greatest Cases Round 3 Match-Ups

Matthew L.M. Fletcher1 Comment

Here is the next series of match-ups (results of the first and second series).

Match-up No. 9

(3) Ex parte Kan-Gi-Shun-Ca (Crow Dog) (109US556) — No federal jurisdiction over Indian-on-Indian crimes arising in Indian country

v.

(30) United States v. Lara (541US193) — Affirming constitutionality of the “Duro fix”

Match-up No. 10

(14) Bryan v. Itasca County (426US373) — Most important $150 tax bill in Indian law history

v.

(19) United States v. Sioux Nation (448US371) — Feds must compensate Sioux Nation for Black Hills taking

Match-up No. 11

(6) Winters v. United States (207US564) — Recognizing tribal water rights by treaty

v.

(27) Mississippi Band of Choctaw Indians v. Holyfield (490US30) — Giving teeth to Indian Child Welfare Act

Match-up No. 12

(11) McClanahan v. Arizona State Tax Commission (411US164) — No state tax on reservation income

v.

(22) United States v. Mitchell (1983) (463US206) — Compensable trust breach for Interior sale of timber resources

Greatest Indian Cases Round 2 Results (Happy Early Labor Day!)

Matthew L.M. Fletcher2 Comments

Here are the results of last Friday’s (and early Saturday’s) poll in the second series of match-ups.

Match-up No. 5

(4) Talton v. Mayes defeats (29) Kiowa Tribe v. Manufacturing Technologies: 55 percent to 45 percent

The closest match-up of the second series of match-ups, featuring two cases that were both great victories for tribal sovereignty, and that also serve ironically as shackles to tribal sovereignty. Talton is always cited for the proposition that we should be wary of a perceived lack of American constitutional rights in tribal courts, and once served as the justification of the Indian Civil Rights Act. Kiowa is a great case recognizing tribal immunity off-reservation and in a commercial context, but fueled its own Congressional hearings on tribal immunity. And don’t forget those transaction costs next time the tribal government wants to lease some Xerox machines.

Match-up No. 6

(20) Merrion v. Jicarilla defeats (13) U.S. v. Mazurie: 93 percent to 7 percent

The biggest mismatch of the second series. Merrion‘s recognition of the power to tax (nonmembers, no less) wipes out the Mazurie holding, recognizing tribal inherent power sufficient to administer federal programs on delegation from Congress. Merrion is, so far, the only case younger than its match-up to survive out the eight match-ups.

Match-up No. 7

(5) United States v. Winans defeats (28) Oklahoma Tax Commission v. Sac & Fox Nation: 57 percent to 43 percent.

Another close one, surprisingly, since modern treaty rights cases wouldn’t have gotten far without Winans and its dicta that Indian survival depends on them. No offense to Sac & Fox, and Prof. Bill Rice (who argued the thing successfully). Maybe a lot of Oklahomans are voting. 🙂

Match-up No. 8

(12) Morton v. Mancari defeats (21) New Mexico v. Mescalero Apache: 65 percent to 35 percent

Not a big surprise here, especially given how tribal advocates depend on Mancari to prop up all sorts of pro-Indian rules, from affirmative action to the Santa Fe Indian Market. Mescalero is a more reliable friend though, and it (along with Merrion) may be the reason tribal interests have primary sovereign authority over their own lands. You never know when Mancari will stop returning your phone calls.

Round 1 results are here.

Looking ahead, there are two more opening round match-up pairings of eight cases each. Some time late next week or early the week after, we’ll move into the octo-finals.

On Using Indians and Tribes as Shills in the Supreme Court

Matthew L.M. Fletcher2 Comments

I’ve defended the Office of Solicitor General in the past, lamented that despite their best efforts, they keep losing Indian cases as the tribal trustee. But lately, it seems like the SG is using Indian tribes as shills to clean up some other messes. They used the Tohono O’odham Section 1500 CFC suit to clean up that mess — they waited for years for the right case, and when the Indian cases came, that was the right time. The OSG may have thought that the tribal contract support costs cases were the right cases to clean up the mess with the Congressional Judgment Fund (they were wrong).

Now another tribe has given the government a chance to clean up another mess — attorney fees under the Equal Justice Act. The case is Pecore v. United States (Pecore Cert Petition, lower court materials here). I know next to nothing about the EJA, but if the petition is right, and there is a serious circuit split, then the government might jump right in. We’ll know at the end of next month when the response to the cert petition is due. If the government acquiesces, we must all realize they’re doing it because the petitioner is tribal. Tribal interests are at the bottom of the barrel when it comes to favored, repeat parties at the Supreme Court.

A footnote — recall the Arizona cert petition on the next major immigration case filed earlier this summer. In the lower court, when Arizona had no say in the caption, the case was called Gonzales v. Arizona. Gonzales was the lead plaintiff, and a lot of people and groups signed on. Now that Arizona has lost below, they rewrote the caption. The case is now captioned Arizona v. Inter Tribal Council of Arizona. All the rest of the respondents are listed in alphabetical order, including Gonzales, except the tribal respondents, who are listed first. If the Court hears this case, it’ll be an Indian-related case first and foremost. Arizona knows what it’s doing.

Turtle Talk Tournament: Greatest Cases in Federal Indian Law

Matthew L.M. Fletcher10 Comments

Let’s have some fun. I’ve picked 32 of the greatest cases in federal Indian law (it’s my game, so my opinion on which is the top 32 — basically, I picked winners for tribal interests). I’ve seeded them (by date, how’s that for arbitrary) and placed them into a bracket. Vote for which one you think is the greater case. Use whatever criteria you want (e.g., most influential on tribal governance, most important FIL principle, my tribe won, my client won, whatever).

Let’s start today with the top of the bracket, the 1-32, 16-17, 8-25, and 9-24 matchups. UPDATE: Voting ends at 10:30 AM eastern Thursday, Aug. 30. Results revealed after.

Match-Up Number 1

(1) Worcester v. Georgia (1832) (31US515) — State law can have “no force” in Indian country

v.

(32) Salazar v. Ramah Navajo Chapter (2012) (11-551) — Pay CSC out of Congress’ Judgment Fund

Match-up Number 2

(16) Santa Clara Pueblo v. Martinez (1978) (436US49) — Tribal Immunity from ICRA Claims

v.

(17) Washington v. Fishing Vessel (1979) (443US658) — Affirming Boldt Decision

Match-up Number 3

(8) Arizona v. California (1963) (373US546) — Indian Water Rights to Colorado River

v.

(25) Iowa Mutual v. LaPlante (1987) (480US9) — Tribal Court Exhaustion includes Tribal Appeals Cts.

Match-up Number 4

(9) Menominee Tribe v. United States (1968) (391US404) — Treaty Rights Survived Termination

v.

(24) Oneida County v. Oneida Indian Nation (1985) (470US226) — Non-Intercourse Act Land Claim

Craven v. Cobell Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Craven Cert Petition

The questions presented:

 

In a decision that conflicts with many decisions of both this Court and other appellate circuits, the Circuit Court of Appeals for the District of Columbia affirmed the final approval of a contested settlement of a long-standing class action involving mismanagement of land trusts for American Indians. Without allowing them to opt out, the settlement extinguishes the rights of the class members to any accounting of the moneys they are owed, in exchange for a one-time $1,000 payment. Then, despite the class members’ ignorance of the amount to which they would be entitled, the settlement offers an additional baseline sum of at least $800 in exchange for which they relinquish any rights to sue on dozens of related claims.
This settlement was approved over the objections of a number of class members. In addition to the bargain described above, it afforded a $99 million fee to the plaintiffs’ attorneys, and incentive payments ranging between $150,000 and $2 million for each of the named plaintiffs.
The questions presented are:
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.

Madison and Oneida Counties to Seek Supreme Court Review of Oneida Reservation Boundaries

Matthew L.M. Fletcher

Here is the latest pleading from the counties, seeking a stay from the CA2 on the reservation boundaries question:

Motion for Stay

Here was our last post, with the counties seeking en banc review of the reservation boundaries issue (the court recently denied the petition).

Yale Supreme Court Caption Name Pronunciation Guide

Matthew L.M. Fletcher6 Comments

Here.

Some Indian Law-related names:

Potawatomi (Audio)

Carceri (Audio)

Oneida (Audio)

Sherrill (Audio)

Coeur (Audio)

La Jolla (Audio)

O Centro Espirita Beneficiente União do Vegetal (Audio)

Guyot (Audio)

Kawaauhau (Audio)

Keokuk (Audio)

Kiowa (Audio)

Jicarilla (Audio)

Wyandotte (Audio)

Mille Lacs (Audio)

Nofire (Audio)

Suquamish (Audio)

Etowah (Audio)

Puyallup (Audio)

Abourezk (Audio)

Kneip (Audio)

Catawba (Audio)

Miccosukee (Audio)

Alcea (Audio)

Kagama (Audio)

Tohono O’odham (Audio) [I think it’s closer to Toe-AHNO-AH-tham (a very soft “th” sound at the end)]

Winans (Audio)

Worcester (Audio)