Justice Breyer and “The Yale Lectures”

Available here, drawing from his book Making Democracy Work.

Here is an excerpt:

After the decision [in Worcester], Justice Joseph Story wrote to his wife: “Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.” A few days later, he wrote to another
correspondent: “The Court has done its duty. Let the Nation now do theirs.” Story added: “Georgia is full of anger and violence. . . . Probably she will resist . . . , and if she does, I do not believe the President will interfere . . . .”

And that is just what happened. Georgia said it would resist the decision as a “usurpation” of power. And this is the case about which President Andrew Jackson supposedly said, “John Marshall has made his decision, now let him enforce it.”
The President considered he had as good a right as the Court to decide what the Constitution meant and how it should be enforced. Worcester stayed in jail. John Marshall wrote to Story: “I yield slowly and reluctantly to the conviction that our Constitution cannot last.”

What was wrong with Jackson’s position? The President soon found out. South Carolina, noticing what Georgia could do, decided it would follow suit— but in respect to federal taxes. It passed a law prohibiting the payment of federal customs duties. And Jackson then began to realize the threat to the Union inherent in the principle. He quickly obtained a “force bill” from Congress, authorizing him to send troops to South Carolina. And South Carolina withdrew its law. The press began to write about Georgia and the Cherokees: how did Georgia and Worcester differ from South Carolina and taxes? And Georgia began to back down. It reached an agreement with Worcester, releasing him from jail. And so the Court’s order was ultimately enforced. Or was it?

There is no happy ending here. Jackson sent troops to Georgia, but not to enforce the Court’s decision or to secure the Indians their lands. To the contrary, he sent federal troops to evict the Indians. He found a handful of Cherokees willing to sign a treaty requiring departure; he ignored 17,000 other Cherokees who protested that they would die rather than agree to go; and he forced the tribe to move to Oklahoma, walking there along the Trail of Tears, so-called because so many Cherokees died along the way. Their descendants live in Oklahoma to this day.

This episode suggests a negative answer to Hotspur’s question. The Court may follow the law—even in an unpopular matter. But that does not matter very much. Force, not law, will prevail. The summoned “spirits” will not come.

OSG Recommends Denial of Certiorari in Osage Nation v. Irby

No one will read this ’til Tuesday, but here goes….

Here is the brief:

10-537 Osage Nation v Irby

EEOC v. Peabody Coal: SCOTUSBlog Petition of the Day

SCOTUSblog has named EEOC v. Peabody Coal Co. its petition of the day:

Title: Equal Employment Opportunity Commission v. Peabody Western Coal Company
Docket: 10-1080
Issue(s): Whether the Secretary of the Interior is a “required party,” within the meaning of Rule 19(a)(1) of the Federal Rules of Civil Procedure, to an action by the Equal Employment Opportunity Commission against a private employer, where the challenged conduct was undertaken pursuant to a federally approved mining lease between the employer and an Indian Tribe, but no federal agency is a party to the lease.

Certiorari stage documents:

I think this petition is a conditional cross-petition though, which isn’t up for serious consideration unless the underlying petition is granted. There are actually two — one by Peabody Coal and one by Navajo. The conditional cross-petition notes that the government will separately respond to the cert petitions.

South Dakota Cert Opposition Brief in Yankton v. Army Corps Cert Petition

Here:

South Dakota Response to Yankton v Army Corps Cert Petition

This is the petition that the OSG recommended be held in abeyance pending the Court’s decision on whether to grant cert in the Hein/Daugaard/South Dakota/etc. v. Yankton cases.

US Files Invitation Brief Opposing Cert in Brown v. Rincon Band (IGRA Revenue Sharing Case)

Here is the brief:

Brown v Rincon Band No 10-330

Cert Petition in Breakthrough Management Group v. Chukchansi Casino

The cert petition in BMG v. Chukchansi was filed two weeks ago.  The petition is available here.  Previous coverage of this case is here.

United States urges denial of the cert petition in Miccosukee Tribe v. Kraus-Anderson Construction

The brief is here: U.S. Brief in Miccosukee Tribe v. Kraus-Anderson Construction

Oneida Indian Nation v. County of Oneida Cert Petition

Here:

Oneida Indian Nation of N.Y. v. County of Oneida

Questions presented:

1. Whether the court of appeals contravened this Court’s decisions in Oneida Indian Nation of New York v. County of Oneida, 470 U.S. 226 (1985), and City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005), by ruling that “equitable considerations” rendered petitioners’ claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio.

2. Whether the court of appeals impermissibly encroached on the legislative power of Congress by relying on “equitable considerations” to bar petitioners’ claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue.

United States v. New York: Government Cert Petition in Oneida Indian Nation Land Claims

Here is the petition:

US v NY (Oneida) Pet

Here is the question presented:

The Trade and Intercourse Act of 1793 (also known as the Nonintercourse Act) stated in relevant part that “no purchase or grant of lands, or of any title or claim thereto, from any Indians or nation or tribe of Indians, within the bounds of the United States, shall be of any validity in law or equity, unless the same be made by a treaty or convention entered into pursuant to the constitution.” Ch. 19, § 8, 1 Stat. 330. The question presented is as follows:

Whether the United States may be barred from enforcing the Nonintercourse Act against a State that repeatedly purchased and resold (at a substantial profit) Indian lands in violation of the Act between 1795 and 1846, based on the passage of time and the transfer of the unlawfully obtained Indian lands into the hands of third parties, when the United States seeks monetary relief only against the State.

Supreme Court Denies Cert in Doe v. Kamehameha Schools (Identity of Plaintiffs)

Here is the order list (docket no. 10-1100).

The cert stage briefs:

Doe Cert Petition

Kamehameha Schools Cert Opp

Doe Cert Stage Reply

Lower court materials here.