Here:
Sebelius v Southern Ute Petition
The government asks that this petition be held pending the outcome of the other petitions (Ramah Navajo Chapter and Arctic Slope).
Supreme Court
Slate on Justice Sotomayor’s “Lonely” Dissent in Jicarilla Apache Nation
Here.
An excerpt:
Sotomayor focused her dissent on the uncomfortable public policy implication of the majority opinion, namely, that the government could have legitimate reasons for managing the trust beyond, or perhaps even contrary to, the interests of the tribe without the obligation to turn over the evidence that proves it. But the majority didn’t flinch. “Congress has structured the trust relationship to reflect its considered judgment about how the Indians ought to be government,” Alito affirmed, “[I]t has been altered and administered as an instrument of federal policy.”
Forget ducks. For Sotomayor, this doesn’t even pass the smell test. The government acts as a trustee and calls itself a trustee, but it won’t abide by any of the traditional duties that go with being a trustee unless it affirmatively accepts them. In effect, the government is using the word trust without feeling obliged by its definition. “There’s no need to use the word,” Sotomayor tartly noted in oral arguments, “because it wouldn’t be a trust.”
The problem for Sotomayor is that the government can be a trustee, but it can’t only be a trustee, and the dual nature of its relationship undermines the trust law exception to attorney-client privilege. Her response is to say that the interests of the trustee and beneficiary should always be aligned; that justice cannot tolerate the casual discharge of a sacred trust, particularly one owed by the federal government to a vulnerable group of people. “Given the history of governmental mismanagement of Indian trust funds,” she says in her dissent, the “application of the fiduciary exception is, if anything, even more important in this context than in the private trustee context.” Maybe so, but that is a moral reply to a legal conundrum. As a matter of law, Sotomayor would have been better off joining Ginsburg’s concurrence, which tried to provide a single exception to the traditional trust relationship. That she did not says a lot about the jurisprudential prerogatives of one of the newest members of the Court.
Jurisprudential prerogatives, and the moral imperatives that underpin them, are the stuff of lonely dissents, which tend to be less about the law than its shortcomings. They are written accounts of a judge’s reckoning with the oldest dilemma of her profession: that what is legal is not necessarily just, and what is just is not necessarily legal. As Sotomayor attests, they can be telling in their despair.
Update in Salazar v. Ramah Navajo Chapter Cert Stage
Here are additional cert stage briefs:
The cert petition is here.
Amerind Cert Opposition Brief
Cavanaugh and Shavanaux Cert Petitions: Challenges to Use of Uncounseled Tribal Court Convictions in Federal Sentencing
Here they are:
11-7379 Cavanaugh Cert Petition
11-7731 Shavanaux Cert Petition
The Cavanaugh question presented (Cavanaugh is now represented by Alex Reichart of United States v. Lara fame):
Whether the United States Constitution precludes the use of prior, uncounseled, tribal court misdemeanor convictions as predicate convictions to establish the habitual offender element of Section 117?
The Shavanaux question presented:
Does the Constitution prevent the use of a prior, uncounseled tribal court conviction that received a term of imprisonment to establish an element of the offense?
Here are the Cavanaugh lower court materials. And here are the Shavanaux lower court materials.
There is no circuit split, as far as we can tell. As such, it seems pretty unlikely these petitions will be granted. As we’ve said here, the Ninth Circuit does not appear to have weighed in on the question. Both petitions argue that the CA9 decision in United States v. Ant (882_F.2d_1389) furnishes the desired circuit split. It’s not clean, in that Ant’s tribal court conviction was a guilty plea used as a confession in federal court, not a conviction in a prior case used under Section 117 to establish facts for a habitual offender sentence enhancement. That said, who knows? We’ll see how the government handles it.
H/t Indianz.
Ute Mountain Ute Tribe Cert Petition in Natural Resources Tax Case
Here are the materials:
Final UMUT Petition for Certiorari
The questions presented are:
1. Does a state have the power to tax minerals production within the territorial boundaries of an Indian nation when the state provides no services in that location whatsoever, and where the tribe’s members cannot even vote in that state’s elections, amounting to taxation without representation?
2. Does Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989), permit New Mexico to tax oil and gas operators’ activities on Indian trust land even where, as here, “the State has nothing to do with the on-reservation activity,
save tax it”?
Tenth Circuit materials are here.
Grand Rapids Press Coverage of Gun Lake Supreme Court Case
Here. An excerpt:
WAYLAND TOWNSHIP — The Supreme Court will decide next year whether the federal government properly took land into trust for the Gun Lake Tribe to build a casino, in a case that experts say reaches far beyond the borders of Allegan County.
On Monday, the court agreed to hearformer Wayland Township trustee David Patchak’s reinstated lawsuit against the Gun Lake Band of Pottawatomi and the federal Interior Department, a case which could force the Gun Lake Casino to shut its doors.
The casino, which employs about 900 people, opened in February and has since paid out $10.4 million in state and local revenue sharing while raking in about $104 million in net profits on electronic games after payouts in less than a year of operation.
“This is an incredibly high-stakes case,” said Matthew Fletcher, a law professor at Michigan State University who specializes in Indian gaming law. “This casino is generating a lot of revenue — a lot more than they thought they would.”
But the Supreme Court, which accepts only about 3 to 4 percent of cases for which they’re petitioned each year, would not be scheduling arguments if the lawsuit were simply about jobs, profits and revenue sharing for municipalities, although that helps, said Fletcher.
Rather, the Roberts Court justices are likely hoping to clear-up a gray-area in the law that governs decisions by the Department of Interior about taking land in trust on behalf of Indian tribes; a wrinkle that bodes well for the tribe and the government, he said.
The Supreme Court typically reverses about 70 to 75 percent of cases they hear, Fletcher said. “They usually agree to hear a case when they think a lower court is wrong.”
Gustafson v. Poitra Cert Petition
Here is the petition (docket no. 11-701):
Gustafson v Poitra Cert Petition
Here are the questions presented:
1. Whether the State of North Dakota can supplant its own state case law, instead of federal law on jurisdictional disputes between state courts and tribal courts.
2. Whether the State of North Dakota has subject matter jurisdiction over a contract dispute between a nonmember individual and a member of an Indian tribe arising from the ownership and use of a building located on non-Indian owned fee land on an Indian reservation.
Here is the lower court opinion. Here is Gustafson’s lower court brief. And Poitra’s. Poitra was pro se.
Quick Commentary on SCOTUS, Patchak, and Corboy
The Supreme Court granted cert in an Indian law case where the petition was filed in favor of tribal interests. This is, of course, the Patchak case involving the Department of Interior’s decision to take land into trust for gaming purposes on behalf of the Gun Lake Band. The last time the Court granted a petition filed on behalf of tribal interests was Cherokee Nation v. Leavitt, a case decided in 2005. The Court might also grant cert this Term in Ramah Navajo v. Salazar. Key to these successful cert petitions is the participation of the United States as supportive of the granting of the petition (if not the merits). In fact, every cert petition granted on behalf of tribal interests in recent memory has the support of the federal government, the last one (I believe) being Mississippi Band Choctaw v. Holyfield. Only Justice Scalia remains from that Court.
Key point: A cert petition on behalf of tribal interests has almost no chance of being granted by the Roberts Court unless the United States favors of the petition. Even then, as the Oneida and Cayuga land claims petitions demonstrates, it is a bit of a crap shoot.
Corboy v. Louie is more representative of where the Supreme Court is in relation to Indian law (though I suppose this isn’t an Indian law case, precisely). There’s nothing certworthy in this case whatsover (no split, nothing of national importance, a case brought by a private tax protester), but the Court is thinking carefully about this case perhaps because Indian law-type legal doctrines are outside of what Dean Getches called the “mainstream” of constitutional law, and should be reeled in. I have no doubt the OSG will recommend a denial because there simply is nothing worthy of Supreme Court review, but the fact this isn’t already a denied petition is telling.
Key point: A cert petition opposing tribal interests (regardless of its merit) receives more attention from the Supreme Court than a petition favoring tribal interests. End of story.
Cherokee Nation v. Ketchum Cert Petition — ICWA Membership Issue
The Cherokee Nation and Britney Jane Little Dove Nielson (child’s mother) have filed a petition for cert in the Supreme Court of the Tenth Circuit’s controversial decision to override the Cherokee Nation’s law establishing automatic temporary citizenship for all children born to Cherokee descendents when determining whether a child was an “Indian child” for the purposes of ICWA.
The Cert Petition is here. Previous materials on this case are here. Dean Leeds earlier commentary on this case is here. While the likelihood the Court grants cert is slim, this is an incredibly important case implicating not just ICWA determinations but tribal citizenship requirements, and the respect granted them in federal courts, in general.
Turtle Talk 
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