Supreme Court

Seneca Telephone v. Miami Tribe Cert Petition

Matthew L.M. Fletcher1 Comment

Here (updated 8/24/11 with better pdf):

Seneca Telephone Cert Petition

Questions Presented:

1. Under federal preemption principles invoked in Rice v. Rehner, 463 U.S. 713 (1983), and specifically, the principles determinative on the applicability of the doctrine of tribal sovereign immunity in a regulatory context, did the Oklahoma Supreme Court err and issue a conflicting ruling with this Court’s decision in Rice when it failed to apply the preemption principles to the present cases?
2. Under the preemption principles invoked in Rice, as applied to the present cases, does the Communications Act of 1934 (47 U.S.C. §§ 151et. seq.) delegate to the States the authority to exercise jurisdiction over tribal entities when Congress confers to the States the power to exercise jurisdiction over all intrastate communications?
Lower court materials are here.

Second Addendum — All the Supreme Court Citations to Indian Law Articles

Matthew L.M. Fletcher1 Comment

Here is the second addendum — all the Indian law (and some history and politics) articles cited by the Supreme Court going back to 1959, and the case/opinion in which they were cited. The original list was here and the first addendum here.

Anders, Indians, Energy, and Economic Development, 9 J. Contemp. Business 57 (1980).

* Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) – 1 time by dissent (Blackmun)

Ansson,  State Taxation of Non–Indians Who Do Business With Indian Tribes: Why Several Recent Ninth Circuit Holdings Reemphasize the Need for Indian Tribes to Enter Into Taxation Compacts With Their Respective States, 78 Ore. L.Rev. 501, 546 (1999)

* Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005) – 1 time in Ginsburg dissent

Barsh, The Illusion of Religious Freedom for Indigenous Americans, 65 Ore.L.Rev. 363, 369-374 (1986)

* Employment Division v. Smith, 494 U.S. 872 (1990) – 1 time by dissent (Blackmun)

Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537 (1996)

* Rice v. Cayetano, 528 U.S. 495 (2000) – 1 time by majority (Kennedy)

 Berger, Indian Mineral Interest-A Potential for Economic Advancement, 10 Ariz.L.Rev. 675 (1968)

* Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972) – 1 time by dissent (Douglas)

Burnett, An Historical Analysis of the 1968 “Indian Civil Rights” Act, 9 Harv.J.Legis. 557, 574-602, 603 (1972)

* Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) – 1 time by majority (Marshall)

Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan.L.Rev. 500 (1969)

* United States v. John, 437 U.S. 634 (1978) – 1 time by majority (Blackmun)

* Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) – 1 time by majority (Marshall)

Campisi, The Oneida Treaty Period, 1783–1838, in The Oneida Indian Experience: Two Perspectives 48, 59 (J. Campisi & L. Hauptman eds.1988) 

* City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) – 2 times in majority (Ginsburg)

 

Chambers & Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 Stan. L.Rev. 1061, 1061-1068 (1974)

* United States v. Navajo Nation, 537 U.S. 488 (2003) – 1 time in Souter dissent

* Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985) – 1 time by dissent (Brennan)

 

Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan. L.Rev. 979, 1002-1003 (1981)

* United States v. Navajo Nation, 537 U.S. 488 (2003) – 1 time in Souter dissent

Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 505 (1976)

* Duro v. Reina, 495 U.S. 676 (1990) – 1 time in majority (Kennedy)

Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L.Rev. 17, 23–38 (1979)

* City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) – 1 time in majority (Ginsburg)

* Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) – 1 time in Souter dissent

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 2 times by dissent (Blackmun)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 2 times by majority (Powell)

Cohen, Original Indian Title, 32 Minn.L.Rev. 28 (1947)

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 1 time by dissent (Blackmun)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 1 time by majority (Powell)

* United States v. Dann, 470 U.S. 39 (1985) – 2 times by majority (Brennan)

Cohen, Indian Rights and the Federal Courts, 24 Minn.L.Rev. 145, 153 (1940)

* Organized Village of Kake v. Egan, 369 U.S. 60 (1962) – 1 time by majority (Frankfurter)

Cohen, Spanish Origin of Indian Rights, 31 Geo.L.J. 1 (1942)

* United States v. Dann, 470 U.S. 39 (1985) – 1 time by majority (Brennan)

* Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) – 1 time by majority (Marshall)

Continue reading →

First Addendum to Supreme Court Citations to Indian Law Scholarship: Treatises and Casebooks

Matthew L.M. Fletcher1 Comment

You’ve seen the list of most-cited scholarship. Here are more detailed lists. This one lists the legal authority, followed by the list of cases/opinions that cite the authority.

Cohen 2005

* United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011) – 6 times by majority (Alito); 4 times by Sotomayor dissent

* Carcieri v. Salazar, 555 U.S. 379 (2009) – 1 time (Stevens dissent)

Cohen 1982

* City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) – 1 time in majority (Ginsburg)

* United States v. Lara, 541 U.S. 193 (2004) – 5 times by majority (Breyer)

* Nevada v. Hicks, 533 U.S. 353 (2001) – 3 times by Souter concurrence

* Idaho v. United States, 533 U.S. 262 (2001) – 1 time by majority (Souter)

* Dept. of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001) – 1 time by majority (Souter)

* Rice v. Cayetano, 528 U.S. 495 (2000) – 1 time by Stevens dissent

* Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998) – 1 time by majority (Thomas)

* Babbitt v. Youpee, 519 U.S. 234 (1998) – 2 times by majority (Ginsburg)

* Hagen v. Utah, 510 U.S. 399 (1994) – 1 time by majority (SOC); 2 times by dissent (Blackmun)

* Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993) – 1 time in majority (SOC)

* Negonsott v. Samuels, 507 U.S. 99 (1993) – 1 time in majority (Rehnquist)

* County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992) – 3 times by majority (Scalia); 2 times by dissent (Blackmun)

* Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) – 1 time in dissent (Blackmum)

* Duro v. Reina, 495 U.S. 676 (1990) – 5 times by majority (Kennedy)

* Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 494 U.S. 408 (1989) – 3 times by Stevens; 1 time by Blackmun

* Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) – 1 time by dissent (Blackmun)

* Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) – 1 time in majority (Brennan)

* Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987) – 1 time by majority (White)

* Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) – 1 time by majority (Marshall)

* Three Affiliated Tribes v. Wold, 476 U.S. 877 (1986) – 2 times by majority (SOC)

* United States v. Mottaz, 476 U.S. 834 (1986) – 1 time by majority (Blackmun)

* United States v. Dion, 476 U.S. 734 (1986) – 4 times by majority (Marshall)

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 2 times by dissent (Blackmun)

* Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985) – 8 times by dissent (Brennan)

* National Farmers Union v. Crow, 471 U.S. 845 (1985) – 2 times by majority (Stevens)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 2 times by majority (Powell)

* National Farmers Union v. Crow Tribe, 468 U.S. 1315 (1984) – 1 time by majority (Rehnquist)

* Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984) – 2 times by majority (Blackmun)

* Solem v. Bartlett, 465 U.S. 463 (1984) – 1 time by majority (Marshall)

* Rice v. Rehner, 463 U.S. 713 (1983) – 2 times by majority (SOC); 4 times by dissent (Blackmun)

* Arizona v. California, 460 U.S. 604 (1983) – 2 times by dissent (Brennan)

Continue reading →

Updated Canadian Supreme Court Justice Stats

Peter Scott Vicaire1 Comment

Here’s the updated stats  for the Supreme Court of Canada’s justices after the recent R. v. Bastien; R. v. Dubé  and Peavine Metis Settlement v. Alberta decisions.  They now range from 27.2% (LeBel)  all the way to 50% (Rothstein and Cromwell) in favor of aboriginal interests. 

Take that, Justices Roberts and Alito – still both at 0% ~ 0/7 and 0/6, respectively.   The complete U.S. Supreme Court stats can be found here.

Supreme Court Citations to Indian Law Scholarship

Matthew L.M. Fletcher7 Comments

In light of recent commentaries about the value (or lack thereof) of legal scholarship (here) and new scholarship about the frequency the Supreme Court Justices cite to legal scholarship (it’s rather a lot), we thought it would be fun to list some findings about the Supreme Court’s citations of Indian law scholarship going back to 1959.

We’ll look later at the frequency of citations overall in later work.

Treatises and Casebooks

First, let’s get the Cohen Handbook out of the way. We have a liberal definition of legal scholarship (no pun intended). The numbers in parentheses are number of cases, and number of citations):

Cohen 2005 — 2 cases, 11 citations [U.S. v Jicarilla Apache had 10 cites alone — guess the Court is finally reading the thing]

Cohen 1982 — 31, 72

Cohen 1958 [actually, Dept. of Interior rewrite] — 20, 40

Cohen 1940/1940/1942/1945 — 15, 29

Overall, the Handbook of Federal Indian Law in all its incarnations has been cited in 68 cases, for a total of 152 citations.

Law and the American Indian/American Indian Law

Price, 1973 edition — 3 cases, 4 citations

Price & Clinton, 1983 edition — 1 case, 1 cite

Clinton, Newton, and Price, 1991 edition — 1 case, 1 cite

Getches, Wilkinson, and Williams on Federal Indian Law — 1 case, 1 cite

Canby Nutshell — 1998 edition — 1 case, 1 cite

Mills, Oklahoma Indian Land Laws (1924) — 1 case, 1 cite

Law Review Article/Book Authors

Leading Repeat Players: There aren’t very many of these. Most articles or books cited are one and done. Here are the top repeat players,  their articles, and the opinions that cite them:

Continue reading →

News Coverage of Gun Lake Band/USA Intent to File Cert Petition in Patchak

Matthew L.M. Fletcher

From Indianz.

Here is the link to our post on the D.C. panel opinion.

And to Patricia Millett’s commentary on the decision.

 

Cert Stage Reply Briefs in United States v. New York & Oneida Indian Nation v. Oneida County

Matthew L.M. Fletcher

Here:

United States Cert Stage Reply Brief

OIN Reply Cert Stage

Top 25 Most-Used and Most Cited Indian Law Supreme Court Cases

Matthew L.M. Fletcher

Everyone loves a ranking. Once again, using Westlaw’s database, and their “most-used” and “most-cited” categories, here are the top 25 cited/used U.S. Supreme Court decisions in Indian law:

Most-Cited

  1. (18,133) Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)
  2. (6517) Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972)
  3. (6047) United States v. Mitchell, 445 U.S. 535 (1980)
  4. (5612) United States v. Mitchell, 463 U.S. 206 (1983)
  5. (5361) Morton v. Mancari, 417 U.S. 535 (1974)
  6. (4480) Arizona v. California, 460 U.S. 605 (1983)
  7. (4369) Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)
  8. (4023) Worcester v. Georgia, 31 U.S. 515 (1831)
  9. (3768) Morton v. Ruiz, 415 U.S. 199 (1974)
  10. (3268) Montana v. United States, 450 U.S. 544 (1981) Continue reading →

Grant Christensen on Individual Justice Voting Patterns in Indian Law Cases

Matthew L.M. Fletcher

Grant Christensen has posted his wonderful paper, “Judging Indian Law: What Factors Influence Individual Justice’s Votes on Indian Law in the Modern Era,” forthcoming in the University of Toledo Law Review, on SSRN.

Here is the abstract:

Scholars of the Supreme Court often use a justice’s political ideology to predict their ultimate vote on Constitutional questions. While this approach may serve scholars well when questions involve hot button civil liberties issues that are the focus of confirmation hearings, ideology is in actuality a poor predictor of judicial behavior in other areas of law. This paper looks at one of the more complex – Federal Indian Law – and uses both descriptive statistics and more advanced quantitative analysis to go beyond the pure ideology and explain why individual Justices vote the way they do. Using the Fisher Exact Test, and a comprehensive new database of Indian Law decisions, I demonstrate that contrary to common expectations, factors like the Solicitor General’s participation are not significant in swaying an individual Justice’s vote, while factors like being the appellant party and certified questions of conflicting jurisdiction do statistically significantly alter an individual Justice’s vote on the merits. These factors provide better insight into the ultimate outcome – at a Justice level – of Indian law decisions before the Court, and can be used by parties to predict future Supreme Court outcomes on Indian law questions.

I had a chance to read an earlier version of this paper. Prof. Christensen expands upon a magical science — predicting Supreme Court Justice voting patterns — that has typically been dominated by discussions about ideology. He rightfully tries to move away from that limited view of judicial voting patterns. And as any observer of Indian law knows, ideology breaks down significantly in Indian law cases. Thoughtful, rigorous work.

WaPo Coverage of College Affirmative Action Circuit Split

Kate Fort

Here.  Our previous coverage of the Sixth Circuit case is here.
College affirmative action back on Supreme Court’s horizon

By , Published: July 31

When the Supreme Court in 2003 narrowly approved the consideration of race in public university admission decisions, it came with loads of restrictions and a sort of expiration date.“We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today,” Justice Sandra Day O’Connor wrote for the majority in Grutter v. Bollinger .

***

One is from Texas, where a panel of the U.S. Court of Appeals for the 5th Circuit upheld a race-conscious admissions policy at the University of Texas at Austin. An attempt to have the entire circuit hear the case failed 9 to 7, and dissenters practically invited the Supreme Court to step in.

The other is from Michigan, where voters in 2006 passed a constitutional amendment to forbid the state’s public colleges and universities from granting “preferential treatment to any individual or group on the basis of race, sex, color, ethnicity, or national origin.”

A panel of the U.S. Court of Appeals for the 6th Circuit ruled 2 to 1 that the amendment violates the Equal Protection Clause of the 14th Amendment because it restructures the state’s political structure to the detriment of minorities.

Michigan Attorney General Bill Schuette (R) on Friday asked the full circuit to review the decision, and said that the Supreme Court would be the next stop if he is unsuccessful with the circuit court.

***

The Texas case, Fisher v. University of Texas , is the farthest along. Washington lawyer Bert W. Rein, who represents Abigail Fisher and Rachel Michalewicz, two students who said UT’s policy discriminated against them, has until mid-September to file a petition with the Supreme Court asking for review.