Here:
Reed v Gutierrez Cert Petition
Lower court materials here.
Questions presented:
I. Should the doctrine of tribal sovereign immunity be abrogated?
II. Even if the doctrine of tribal sovereign immunity should not be abrogated, should it bar claims against Indian tribes or their employees for their off-reservation torts?
From SCOTUSblog (Amanda Frost):
The Supreme Court today has nearly complete discretion over its docket—too much discretion, some argue. In a world in which the Court grants only about one percent of the 8000 or so petitions it receives each year, the process of “deciding to decide” is almost as important as the Court’s rulings on the merits, and yet the public knows almost nothing about how such decisions are made.
In a forthcoming article in the University of Pennsylvania Law Review, Professor Kathryn Watts argues in favor of incorporating principles of administrative law into the Court’s case selection process. She notes that congressional delegations of power to agencies are constrained by public participation, reason-giving, transparency, and the agency’s political accountability, but that none of these factors limit the Supreme Court when selecting cases.
To improve the process, Professor Watts suggests that the Justices be required to publicly disclose their votes at the cert stage. Doing so might inspire the Justices to explain their decisions in important cases, in part to avoid the impression that the vote indicates the Justices’ views on the merits. Furthermore, such a rule could lead the Justices to supervise more closely the work of their law clerks, whom many view as exercising too much control over case selection. Finally, vote disclosure might give the general public, as well as practitioners, a better sense of how the Court makes these all-important decisions.
In a similar vein, Professor Watts suggests that cert. petitions themselves be made publicly available on the Supreme Court’s website. She hopes that this would lead to more participation by a broader array of amici at the cert. stage, which would better inform the Court’s case selection process.
Finally, Professor Watts adds her voice to that of Professor Amanda Tyler in calling for increased use of the certification process. Although the law currently allows the federal courts of appeals to certify questions of law to the Supreme Court, the practice is rare. As both Professors Watts and Tyler argue, the benefit of certification is that it gives the lower courts a role to play in choosing issues for Supreme Court review, adding a fresh perspective to what has become an insular and secretive process.
SCOTUSblog released its stat pack today, and U.S. v. TON was top of the list for the number of days between the argument and the opinion at 176 days. The second closest was at 174 and the third at 169. The fastest opinion release was 41 days. The link to all of the stats is here, and here is the days-between-oral-argument-and-opinion pdf.
The SCOTUSblog commentary on the United States v. Tohono O’odham Nation decision — specifically the part where the commentator notes the Court’s “apparent disregard for minimalism” — provoked us to comment on judicial minimalism (or the lack thereof) in Indian law. With all due respect to Prof. Krakoff’s paper (50AmULRev1177), which argued that the Rehnquist Court used judicial minimalism to undermine the foundations of Indian law, a little judicial minimalism would look good to tribal advocates right about now.
In addition to the TON case, the Roberts Court has gone out of its way to pronounce much broader common law rules and decide larger questions first instead of deciding cases on narrower grounds.
As expected, the Supreme Court granted cert in United States v. Eastern Shawnee Tribe of Oklahoma for the purpose of vacating the Federal Circuit’s decision and remanding to that court for reconsideration in light of United States v. Tohono O’odham Nation.
From SCOTUSblog:
The most striking feature of Tuesday’s opinion in United States v. Tohono O’odham Nation (No. 09-846) is the apparent disregard for judicial minimalism in Justice Kennedy’s opinion for the Court. The Court, in an opinion joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, held that 28 U.S.C. § 1500, which prohibits a suit in the Court of Federal Claims (CFC) on a claim “for or in respect to which” the plaintiff has a suit pending in another court, applies to suits that share operative facts, even if they request different relief. The Court need not have decided that question, however, unless it confronted two suits with no remedial overlap, for precedent had already established that Section 1500 bars the new suit if the two suits share operative facts and request overlapping relief.
The Court’s opinion could therefore be characterized as abandoning judicial minimalism by refusing to decide the case on the narrowest possible grounds. The opinion refuses to even mention the preliminary question on which the oral argument focused: whether the Tohono O’odham Nation’s two suits—one in the CFC seeking money damages for the government’s breach of trust while managing Nation assets, and the other in the U.S. District Court for the District of Columbia seeking an equitable accounting and an accompanying payment of any shortfall for the same breach of trust—do in fact seek overlapping relief. If so, that question could have been dispositive – as it would have been for Justice Sotomayor, who filed an opinion concurring in the judgment that was joined by Justice Breyer.
Why would the Court decline to decide whether the two suits seek similar relief? The opinion itself provides no particular reason, other than a desire to move past the preliminary question to clarify the scope of Section 1500:
To continue to reserve the question [of whether § 1500 bars suits with no remedial overlap] would force the CFC to engage in an unnecessary and complicated remedial inquiry, and it would increase the expense and duration of litigation. The question thus demands an answer, and the answer is yes.
But comparing different types of relief is not difficult: as the concurrence points out, the CFC has been doing just that for almost fifty years in applying Section 1500. Instead, it is likely that the Court wanted to avoid deciding whether an equitable order to pay money is the same as money damages.
One possible reason emerges when one remembers that a distinction between those two forms of relief is the foundation of the district court’s jurisdiction over any suits claiming money from the government. According to 5 U.S.C. § 702, district courts can hear claims against the United States only if they “seek[] relief other than money damages.” Claims for money damages, by contrast, must be brought in the CFC. After Bowen v. Massachusetts (1988), however, a plaintiff could sue the United States for money outside of the CFC so long as he asked for an equitable order to pay money. Such a suit, the court reasoned, is distinct from a suit for money damages. Subsequently, lower courts have applied that reasoning to extend Bowen and allow suits against the government for money in the district court for a variety of plaintiffs, from government contractors and employees to claimants under many government spending programs.
Here’s an updated report card on the Supreme Court Justices’ holdings in Indian Law after yesterday’s United States v. Tohono O’odham Nation decision.
Turtle Talk 
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