Supreme Court

It is therefore with great solemnity that we hand down the majority opinion in the case of Domino’s v. That One Greek Place Over on N Street.

There are meritorious arguments for both proposals. Pizza, as some members of the Court have contended, is a lunch cuisine with deep foundations in the history of the United States Supreme Court’s break room kitchenette. Further, our unanimous opinion in Domino’s v. Sbarro, 540 U.S. 891 (2003), stands for the proposition that Domino’s never skimps on the toppings, and that their Cinna Stix are pretty good too, especially if you eat them when they’re still warm.

While those Justices in favor of that Greek joint have argued that Gyros are, in many respects, way tastier than pizza (see Scalia, J., dissenting, infra), they have failed to cite to any relevant Federal Statutes or Law Review articles for support. As another matter, the Court isn’t even sure whether the Greek place will deliver all the way to the Supreme Court Building—and Breyer is the only Justice with a car, and he doesn’t really feel like driving.

Cert Petition in Comenout v. Washington — Tax Case

March 28, 2012March 28, 2012Matthew L.M. Fletcher

Here.

Here are the questions presented:

1. Did the court below err by holding that the State of Washington has jurisdiction to charge a state cigarette tax crime against a Quinault Indian and other Indians allegedly selling untaxed cigarettes at the Quinault Indian’s trust allotment located outside the Quinault Indian Reservation boundaries?

2. Did the court below err in refusing to apply the federal law definition of Indian country, 18 U.S.C. § 1151(c)?

3. Did the court below err in holding that the State of Washington, an optional Public Law 280 state, had state tax crime criminal jurisdiction of enrolled Indians on trust lands?

4. Did the court below err in holding that Washington law, Wash.Rev.Code 37.12.010 through 060, was exempt from the Quinault Tribe’s retrocession of state jurisdiction?

Amicus Briefs Supporting Respondent in Salazar v. Ramah Navajo Chapter

March 27, 2012Matthew L.M. Fletcher

Here:

11-551 Amicus Chamber of Commerce

11-551 Ramah Amicus National Congress of American Indians et al

No. 11-551 Arctic Amicus in Ramah 3-26-12

Petitioner’s Reply Brief in Support of Cert in Nielson v. Ketchum

March 26, 2012Matthew L.M. Fletcher

Here:

Petitioner’s Cert Stage Reply Brief

Respondent Brief in Salazar v. Ramah Navajo Chapter

March 26, 2012Matthew L.M. Fletcher

Here:

Ramah Brief

Respondent’s Brief in Salazar/Gun Lake Band v. Patchak

March 25, 2012Matthew L.M. Fletcher

Here:

Patchak Brief

Minnesota Cert Opposition Brief in Beaulieu v. Minnesota

March 21, 2012Matthew L.M. Fletcher

Here:

Mn AG Brief Oppsng Kev B Pet4 Cert 3-14-12

You may recall the state waived its right to respond to the cert petition, but the SCT called for a response.

Tribal Supreme Court Project Ten Year Report — And Quick Commentary

March 13, 2012Matthew L.M. Fletcher

Here:

TSCT 10 Year Report – FINAL March 2012

This is an important report for tribal leaders and advocates to read. From the introduction:

Now in existence for ten years, the Tribal Supreme Court Project can look back to review the degree to which its work has been effective. From OT01 through OT10, several developments are notable. First and foremost is the win-loss record for Indian tribes before the Court. Figure 1 of the Report is a table of the Indian Law Cases Where Certiorari Was Granted. Overall, the win-loss percentage has remained the same with the Tribes winning only about 25% of their cases. However, under the Rehnquist Court (OT01-OT04), Indian tribes increased their winning percentage to greater than 50%—winning 4, losing 3, and 2 draws in 9 Indian law cases heard on the merits. This winning percentage was a vast improvement from a deplorable winning percentage of 20% in the past. The work of the Tribal Supreme Court Project appeared to be paying major dividends. But in the past six terms of the Roberts Court (OT05-OT10), Indian tribes have witnessed their winning percentage plummet to 0%—losing all 7 cases argued on the merits.

A few comments:

The Supreme Court outcomes aren’t the whole story. The TSCP has been very successful in two areas — organizing amicus brief strategy and getting cert denied in several cases — although the Project is just one player in the process (the OSG, the tribal parties, and others are often as or more important). Last Term’s dismissal of the Madison County petition was a major success.
Bringing in members of the Supreme Court “Bar” has been critical in limiting the damage to tribal interests. David Fredericks’ work, for example, in Plains Commerce Bank may have changed that case from a potential disaster for tribal jurisdiction purposes to a 5-4 heartbreaker (or, a case that really didn’t decide anything). Names matter to the Supreme Court (well, as does quality of advocacy, too, to be sure). Of course, there’s an arms race and tribal interests are now facing the Ted Olsons and Paul Clements of the world, so in some ways its a wash. In fact, this may be a reason why there have been no additions to the First Thirteen American Indians to argue before the Supreme Court since 2001.
The requirements for success in the Supreme Court for tribal interests remain (as they probably always have): (1) the federal government’s participation as a party or an amicus in support of tribal interests and (2) treaty or statutory interpretation cases. The Rehnquist/Roberts Courts are clearly not common law courts, unlike the Warren/Burger Courts, and that heavily disfavors federal Indian common law claims. And more and more, as the federal government’s conflicts within the trust responsibility become almost too large to handle, the effectiveness of the federal government’s support in Supreme Court advocacy as an amicus is waning considerably.
Our late, departed friend David Getches was the great scholar on Supreme Court jurisprudence, but he also said (as did Rennard Strickland) that the future of Indian law is in tribal law and in tribal bureaucratic and administrative advocacy. In many ways, Supreme Court litigation is the reality TV of American Indian law, surreal and wholly unrepresentative of what tribes are doing now.