Supreme Court

SCOTUSblog Lists Gila River Indian Community v. Lyon as Petition to Watch

Matthew L.M. Fletcher1 Comment

Here:

Gila River Indian Community v. Lyon

Pending petition

Docket No. Op. Below Argument Opinion Vote Author Term
11-80 9th Cir. TBD TBD TBD TBD TBD

Issue: (1) Whether, under Federal Rule of Civil Procedure 19(b), courts may adjudicate and compromise legal rights in land to which the United States holds title without the United States’ participation in the litigation; and (2) whether, in light of this Court’s recent decision in United States v. Jicarilla Apache Nation, No. 10-382 (June 13, 2011), litigation compromising the United States’ title in land can proceed in the United States’ absence as long as an Indian tribe is a party to the litigation.

Briefs and Documents

Certiorari-stage documents

Ann Tweedy on Indian Self-Defense and the Second Amendment

Matthew L.M. Fletcher

From the crit:

Ann E. Tweedy

“[H]OSTILE INDIAN TRIBES . . . OUTLAWS, WOLVES . . . BEARS . . . GRIZZLIES AND THINGS LIKE THAT?” HOW THE SECOND AMENDMENT AND SUPREME COURT PRECEDENT TARGET TRIBAL SELF-DEFENSE

Here is the introduction:

This article examines the history of self-defense in America, including the right to bear arms, as related to Indian tribes, in order to shed light on how the construction of history affects tribes today. As shown below, Indians are the original caricatured “savage” enemy that white Americans believed they needed militias and arms to defend themselves from. Since the early days, others have ably documented that the perceived enemies have multiplied to include African-Americans, immigrants, and the lower classes. But this has not meant that Indians have been let off the hook. Instead, they not only remain saddled with whites’ nightmare images of their savagery, but they continue to be punished for the popular perception of them in very concrete ways. Specifically, they are repeatedly and increasingly denied the right to govern on grounds of their untrustworthiness, and it is entirely possible that the lawlessness on Indian reservations has continued as a result of this very racialization.
This article first examines evidence that the historical meaning of self-defense in America (including that of the Second Amendment) was predicated largely on the premise that European, especially English, colonists needed to defend themselves against “savage” Indians. The article then argues that the cultural myth of white America’s need to defend itself against Indians obscures the fact that Indians who engaged in armed conflicts with the United States or the colonies were, in many instances, actually defending themselves and their homelands from white aggression and encroachment on the lands they owned and had been using for centuries.
The article next argues that this self-defense mythology and the oppressive history that it obscures have had important historical consequences for tribes and continue to have concrete consequences for tribes today. These continuing consequences are largely due to the fact that tribes today continue to be viewed as “savage” in the popular imagination and by Supreme Court Justices. The article further argues that such consequences can be understood as a deprivation of the right to self-defense in a figurative sense.
More specifically, as scholars such as Robert Williams have documented, the Supreme Court implicitly relies on this racialized characterization to deny tribes their sovereign powers. Thus, despite the fact that federal and state governments no longer have statutes and rules in place that deny Indians the right to carry guns, because tribes continue to be punished for their past efforts to defend themselves, in a very real sense Indians today lack the right to self-defense. Furthermore, the Supreme Court’s continual abrogation of tribal sovereign rights render tribes and the individuals living on reservations, both Indian and non-Indian, virtually defenseless against everything from predatory lending to violent crime. As a result, the depictions of tribes as savages are depriving tribes and Indians of their right to self-defense in a figurative sense on a macroscopic level. Additionally, America’s cultural understanding of tribes as warlike savages who perpetrated aggressions on innocent white colonists may well be working to subconsciously motivate the federal government to turn a blind eye to the horrific levels of violent crime that plague Indian reservations in the United States.
This article concludes that, as a nation, we must make an honest attempt to reckon with this checkered history and that, ultimately, we need to reevaluate both key Indian law precedent and the right to self-defense embodied in the Second Amendment. At a minimum, Indians’ and tribes’ constitutional rights must be protected prospectively, both in the context of self-defense as traditionally understood and more widely. Moreover, limitations on tribal jurisdiction are, in many cases, grounded on notions of savagery and should be regarded as inherently suspect. Finally, as a society, we must question all of our assumptions about tribes and Indians.

Omaha Tribe v. StoreVisions Cert Petition

Matthew L.M. Fletcher1 Comment

Filed yesterday, I’m told:

Omaha Tribe Cert Petition

Question presented:

Is apparent authority sufficient to bind an Indian tribe to a waiver of the tribe’s federally protected sovereign immunity, when the purported waiver is executed by a tribal official acting outside the scope of his actual authority?

Lower court materials are here.

Kansas SG McAllister on Indian Tribes and Foreign Governments as Amici before the SCT

Matthew L.M. Fletcher1 Comment

Stephen R. McAllister, the Solicitor General of Kansas, has published “The Supreme Court’s Treatment of Sovereigns as Amici Curiae” in the Green Bag 2d. He posted the article on SSRN here.

Here is the abstract:

This article traces the history of current Supreme Court Rule 37.4, which exempts the federal government, state governments, and local governments from rules that otherwise require consent of the parties to file an amicus brief and that require disclosure of information regarding whether any person or entity other than the named amicus contributed financially or otherwise to the amicus brief. The article surveys the Supreme Court’s historical practices regarding amici filings by government entities, and locates the first rule of the Court addressing amicus filings, then traces the rule’s evolution forward to the current day. In particular, the article considers the treatment of both Indian Tribes and foreign nations as sovereign amici in the Supreme Court, and comments upon their exclusion from current Rule 37.4.

LaBuff v. United States Cert Petition

Matthew L.M. Fletcher

Here:

LaBuff Petition for Certiorari dated August 26, 2011

Lower court materials here.

Here are the questions presented:

1. Has the Ninth Circuit, contrary to United States v. Rogers, erroneously minimized consideration of the undisputed facts that petitioner is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian and thereby created a conflict with the Eighth Circuit?

2. Did the government prove beyond a reasonable doubt that petitioner is an Indian person where he is not a member of a tribe, is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian?

Ninth Circuit Decides Indian Status Case Under Major Crimes Act

Matthew L.M. Fletcher3 Comments

I’m still trying to understand how a reasonable jury of non-Indians can decided beyond a reasonable doubt that someone is an “Indian” under the Major Crimes Act. 🙂

Here are the materials in United States v. LaBuff:

LaBuff CA9 Opinion

LaBuff Opening Brief

US Answer Brief — LaBuff

LaBuff Reply

The court originally decided this case without publishing the opinion, but the government successfully petitioned the court to published it. Here are those materials. A cert petition is pending (docket no. 11-6168, definitely one to watch!):

US Request to Publish

LaBuff Opposition

Update with additional Ninth Circuit materials:

Doc 27 Objection filed October 18, 2011

 

 

Navajo Tribal Court Suit against Gallup Diocese: Interesting, Even Strange Supreme Court Implications

Matthew L.M. Fletcher

As we noted a few weeks ago, the Navajo Nation Supreme Court remanded a suit against the Gallup Diocese. The suit apparently alleges sexual abuse against Catholic priests and others against the plaintiff, a John Doe. The case does not have national importance yet, but it one day could.

Consider a class action suit brought in tribal court against any number of Catholic dioceses around the nation. We could have them here in Michigan in relation to the Holy Childhood school abuses, which are extensive and extensively documented.

Most outsiders would say why not sue in state or federal court, but a significant portion of the claimed abuses would have happened within reservation boundaries, making tribal court jurisdiction an issue. If the torts alleged occurred on church property, then the Montana case becomes the “pathmarking” doctrine. Since the church probably never consented to tribal jurisdiction, what remains is Montana 2 — the so-called health, welfare, political integrity, and economic security exception to the general rule that tribes cannot assert jurisdiction over nonmembers.

A class action successfully proving intergenerational trauma and multiple wrongful deaths could arguably meet the Montana 2 criteria, even in a federal circuit court.

So that raises the specter of Supreme Court review. Seven of the nine Justices, at least right now, are Catholic. Will they have to recuse themselves? Actually, they aren’t required to at all, but will they? I would guess no. It’s one thing to persuade the Court to affirm tribal jurisdiction, but another to persuade the Court to affirm jurisdiction over a Catholic diocese.

I always thought the commentary about the fact that there are so many Catholics on the Court was kind of silly, until I started thinking about this case.

Interesting, and strange.

Reuters Article on Oneida Land Claims Cases

Matthew L.M. Fletcher

Here:

ALBANY, N.Y., Oct. 18 (Reuters) – In a decision that could have implications for Native American tribes nationwide, the U.S. Supreme Court on Monday declined to hear an appeal by the Oneida Indian Nation seeking compensation for 250,000 acres of former tribal lands illegally purchased by New York in the 18th and 19th centuries.

The suit, first filed in 1974, alleged New York violated federal law when it purchased the land without Congressional approval. The suit claims the land, bought in central New York between 1795 and 1846, is now worth more than $500 million.

The U.S. Court of Appeals for the Second Circuit tossed out the case last August, ruling that while the purchase of the land was illegal, granting the nation’s claims would be too disruptive to the state, local governments and the current owners of the land in question.

Continue reading →

NYTs: “College Diversity Nears Its Last Stand”

Matthew L.M. Fletcher1 Comment

Here.

Malaterre v. Amerind Risk Management is SCOTUSBlog Petition of the Day

Matthew L.M. Fletcher1 Comment

Here:

The petition of the day is:

Malaterre v. Amerind Risk Management Corp.
Docket: 11-441

Issue(s): Whether a tribal business corporation formed pursuant to 25 U.S.C. § 477 with the aim of insuring Indian Housing Authorities may properly invoke tribal sovereign immunity as a ground for avoiding its contractual obligation to provide insurance coverage for liability claims arising from injuries sustained by tribal-member tenants in Indian housing units.

Certiorari stage documents:
Opinion below (8th Cir.)
Petition for certiorari