Supreme Court – Page 136

Today’s Conference: Osage v. Irby (A Petition to Watch)

February 18, 2011Matthew L.M. Fletcher

Osage Nation v. Irby
Docket: 10-537
Issue(s): (1) Whether, in determining whether Congress “disestablished an Indian reservation,” pursuant to Solem v. Bartlett (1984), courts are limited to the statutory text, legislative history, and views of the Executive Branch or can instead also consider other external indicia; and (2) whether the lower court properly ruled that a Native American tribe’s reservation had been “disestablished.”

Certiorari stage documents:

Utilities Amicus Brief in Support of South Dakota et al. v. Yankton Cert Petitions

February 17, 2011Matthew L.M. Fletcher

Here: Electric Cooperatives Amicus Brief in Support of Petition.

The cert petitions are here.

Atlantic Monthly Article: Why the Sioux Nation Says No to $1 Billion

February 12, 2011February 11, 2011Matthew L.M. Fletcher1 Comment

Here is the article.

An excerpt:

MARIO GONZALEZ IS Oglala Sioux and Mexican and walks like he was once a linebacker. A tribal lawyer for the Sioux, Gonzalez has devoted much of his career to the convoluted fight for the Black Hills of South Dakota—a fight that has already lasted a century. More than 30 years ago, the federal Indian Claims Commission awarded the Sioux what amounted to $102 million for the taking of the Black Hills. But the Sioux didn’t want the money; they wanted their land back. So the money has lingered in trust accounts, accumulating interest. Today, in the name of some of the poorest people in the country, about $1 billion waits untouched in accounts at the U.S. Department of the Treasury.

In his office in Rapid City, Gonzalez told me that he’s hopeful these days; during his campaign, Barack Obama indicated that he would be open to innovative solutions to the Black Hills case. Gonzalez is working with a group of Sioux to put a proposal in front of the president. I’d like to believe something could shift: in my time working in Indian Affairs at the Department of the Interior, from 2005 to 2007, no issue seemed more agonizing.

The struggle of the Sioux on the 17 reservations scattered from Montana through the Dakotas to Minnesota is written in abysmal statistics. More than 80 percent of residents of the Oglala Sioux Pine Ridge reservation are unemployed. Rape is pandemic. According to Oglala President John Yellow Bird Steele, almost half of Oglala Sioux over 40 have diabetes, and in the Western Hemisphere, few countries have shorter life expectancies (for men it is 48; for women, 52).

Tribe members insist that the 1877 act of Congress that moved the Sioux from their sacred Black Hills is not valid: it wasn’t agreed to by enough tribe members, and the land was never for sale in the first place. When the Supreme Court in 1980 affirmed the original award of $102 million, Gonzalez told me, “there was some jubilation among some of the tribal members. But there were a lot of younger people, including me, who felt that the Indian Claims Commission process, as it applied to the Sioux land claims, was a sham, and we should not participate.”

After all, if the land was never for sale, how can you ever accept money for it? Yet the federal courts consider the ownership question to be settled. The ICC had no authority to return land to the Sioux—just to give them restitution in the form of money. “The courthouse doors have been slammed in our face,” Gonzalez says. “Congress and the president are the only viable branches of government that can really resolve these issues.”

Some Sioux want to take the money now, Gonzalez says. “We tell them, ‘Our grandfathers and great-grandparents spilled a lot of blood so future generations could have a homeland that included the Black Hills.’” If the tribes accept the settlement, he adds, “and the money is all gone three years from now, that’s when the Sioux will become a defeated people. That’s when you will see them walking around in shame with their heads hanging.”

Peabody Coal and Navajo Nation File Cert Petitions against EEOC over Navajo Tribal Employment Preference

February 7, 2011February 5, 2011Matthew L.M. Fletcher3 Comments

Here is the Peabody Coal petition: Peabody Coal Cert Petition.

The question presented:

Where the EEOC contends that conduct required by a tribal coal mining lease provision mandated by the Secretary of the Interior violates Title VII of the Civil Rights Act of 1964, which statute expressly bars the EEOC from suing the Secretary to enforce Title VII, does Federal Rule of Civil Procedure 14 permit the coal mining lessee or the tribal lessor to implead the Secretary as a third-party defendant?

And here is the Navajo cert petition: Navajo Nation Cert Petition

The questions presented:

1. May the sovereign immunity of the United States and of a federally recognized Indian tribe, preserved in Title VII of the Civil Rights Act of 1964, be abrogated by application of Rules 14 and 19 of the Federal Rules of Civil Procedure?

2. May a court use Rule 14 to permit or require a party to implead the Secretary of the Interior in a case where the applicable statute does not confer a right of contribution?

Lower court materials here.

And here is Dr. Ray Austin’s fine history of the tribal law in question. And my paper from 7 years ago on Rule 19 and Indian tribes. [Read my paper and you’ll know how this is going to turn out.]

Patricia Millett Commentary on D.C. Circuit’s Patchak Decision

January 31, 2011February 1, 2011Matthew L.M. Fletcher4 Comments

Commentary on Patchak v. Salazar et al., No. 09-5324.

On January 21, 2011, the United States Court of Appeals for the District of Columbia Circuit disagreed with three other federal circuits and held that sovereign immunity is waived for a challenge to a Department of the Interior decision to take land into trust for an Indian tribe, so long as the plaintiff itself is not claiming title to the land. The decision is Patchak v. Salazar et al., No. 09-5324. Because Interior can usually be sued in the District of Columbia, Patchak not only creates a circuit split but also opens a ready forum for future challenges to trust acquisitions. This opening of the courthouse doors for suits against the United States makes a petition for rehearing en banc and, if unsuccessful, a petition for certiorari by the Solicitor General highly likely.

Patchak, an individual plaintiff, filed suit claiming that Interior’s decision to take land into trust for the Match-e-be-nash-she-wish Band of Pottawatomie (Gun Lake Tribe) in Michigan was ultra vires and contrary to statute. After Patchak unsuccessfully sought to enjoin the acquisition pending resolution of his complaint, Interior took the land into trust, and the district court dismissed the suit for lack of standing. On appeal, the D.C. Circuit reversed on the standing issue and addressed the United States’ claim of sovereign immunity under the Quiet Title Act. Until now, all three circuits that have addressed the issue (the Ninth, Tenth, and Eleventh) have held that the Quiet Title Act, 28 U.S.C. § 2409a, bars suits like Patchak’s. See Fla. Dep’t of Bus. Regulation v. Dep’t of Interior, 768 F.2d 1248, 1253-55 (11th Cir. 1985); Neighbors for Rational Dev., Inc. v. Norton, 379 F.3d 956, 961-63 (10th Cir. 2004); Metro. Water Dist. of S. Cal. v. United States, 830 F.2d 139, 143-44 (9th Cir. 1987). The Quiet Title Act allows suits “under this section to adjudicate a disputed title to real property in which the United States claims an interest,” and specifically excludes “trust or restricted Indian lands.” Courts have read this language as barring all after-the-fact challenges to the United States’ trust acquisitions for Indian tribes—notwithstanding the general waiver of sovereign immunity in the Administrative Procedure Act, 5 U.S.C. § 702, for actions seeking non-monetary relief against official agency action.

Rejecting this analysis, the D.C. Circuit examined the language and history of the Quiet Title Act and held that Patchak’s claim challenging the legality of the trust acquisition was not a “quiet title” action at all, because Patchak did not claim title to the lands at issue. Therefore, the Court reasoned, his suit was not covered by the Quiet Title Act or its “Indian lands” exception. In so holding, the D.C. Circuit identified and disagreed with two rationales relied on by other circuits. One is that the legislative history of the Indian lands exception to the Quiet Title Act cites the federal government’s obligations to Indian tribes. The D.C. Circuit reasoned that this spoke only to the need to exclude certain quiet title actions from the Act—not to whether a particular suit is a quiet title action. The other rationale is that Congress would have had no reason to allow suits by persons not claiming a title interest if it barred suits by those who do. The D.C. Circuit held that because the APA waiver in § 702 was enacted (in 1976) after the Quiet Title Act (in 1972), suits by persons not claiming title would not have been contemplated at all when the Quiet Title Act was passed. Thus, it reasoned, the Quiet Title Act does not speak to this distinction, and § 702 controls.

The breach in precedent protecting its immunity that Patchak opened will likely be of acute concern to the Justice Department. That, combined with the clear conflict in the circuits, is likely to prompt the Solicitor General to seek rehearing en banc in the D.C. Circuit (which is rarely granted) and, if that does not succeed, to take its case to the Supreme Court. The fact that the case is interlocutory is unlikely to pose a barrier. The Supreme Court generally allows interlocutory review of sovereign immunity claims, Puerto Rico Aqueduct & Sewer Auth., v. Metcalfe & Eddy, Inc., 506 U.S. 139 (1993), and it has granted certiorari to review interlocutory Quiet Title Act claims in the past, see United States v. Mottaz, 476 U.S. 834 (1986).

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Obama’s Nominee for Solicitor General Has Fairly Extensive Indian Law Experience

January 26, 2011Matthew L.M. Fletcher1 Comment

Donald Verrilli, President Obama’s nominee for the SG position, has worked several Indian law matters before the Supreme Court while part of Jenner & Block (along with our friend Ian Gershengorn, also at the DOJ), mostly in terms of cert stage briefs and amicus briefs at the merit stage. However, Mr. Verrilli is known more for his work in other appellate cases, especially telecommunications and even some War on Terror cases.

Here are those Indian law briefs, listed by case:

Cayuga Indian Nation v. Pataki (cert denied)

Cayuga Cert Petition

Cayuga Reply Brief

City of Sherrill v. Oneida Indian Nation

USET Amicus Brief in Sherrill

Cherokee Nation v. Thompson

US Chamber of Commerce Amicus Brief in Support of Cherokee Nation

South Dakota v. Cummings (cert denied)

Cert opposition brief

Mr. Verrilli also worked on the cert stage briefs in Comstock Resources v. Kennard, which had some tribal involvement, but little actual Indian law, in opposition to the tribal/Indian interest.

Osage Reply Brief in Cert Stage

January 26, 2011January 25, 2011Matthew L.M. Fletcher

Here: Osage Cert Reply

Commentary on Recent CVSGs in Supreme Court Indian Law Cases

January 25, 2011Matthew L.M. Fletcher

A couple years back, we wrote a post about the important of the Solicitor General’s views in Indian law cases (here). I followed that up with a short paper on how it appeared that the OSG’s influence on the Supreme Court — usually very prominent — seemed to wither when the OSG sided with tribal interests in Supreme Court litigation.

In this Term alone, at the invitation of the Supreme Court, the OSG has already filed two invitation briefs (Hogan v. Kaltag and Thunderhorse v. Pierce), and could file two more before the Term ends in the summer (Schwarzeneggar v. Rincon Band and Miccosukee Tribe v. Kraus-Anderson Construction). These invitation briefs are the result of Supreme Court orders inviting the views of the Solicitor General in cases where the U.S. is not a party (called a CVSG — a call for the views of the Solicitor General), but where the federal government may have a special interest or special expertise in a particular issue. The Court has asked for the Solicitor General’s views on an Indian law petition, on average, somewhat less than once per Term.

So the four recent CVSGs are interesting, to say the least.

There are tons of theories as to why the Court might issue a CVSG. For example, a Supreme Court clerk in the cert pool might simply be flummoxed by a question, and recommend a CVSG so as to avoid writing a poor memo; or a Justice or group of Justices might be wary of a grant in a particular case thinking a majority would rule against the Justice’s preference, and so seek a CVSG (a “defensive CVSG,” if you will); or any number of other reasons. It bears note that the OSG has already passed on drafting an amicus brief during the certiorari stage, and so the Court’s issuance of a CVSG is, to some extent, evidence of the Court second-guessing the government’s choice to sit back on a particular case. In Indian law cases, it makes sense to issue the occasional CVSG — the federal government is the trustee of Indian tribes and Indian property, the government has experience and expertise in Indian affairs and litigation involving tribal interests, and Indian law is a uniquely federal question.

So why so many CVSGs this Term (three, and one carried over from last Term)? It could be with the recent turnover in the Court, the new Justices really do need the additional advice from a respected authority (that is, the OSG). Maybe the OSG is writing fewer amicus briefs during the cert stage than before, and so the Court is trying to fill that gap with CVSGs. Maybe there are few Justices that at least superficially support tribal interests, and they are being successful in persuading the rest of the Conference to defer to the OSG through the CVSG process before issuing a grant against tribal interests (“defensive CVSGs”).

One possibility (a total long-shot, I know) is that the Court is gun-shy about granting a cert petition brought by a state or a non-Indian party (but obviously not the United States) because of the Plains Commerce Bank v. Long Family Land and Cattle Co. debacle. I say debacle because I get the sense that the majority of the Supreme Court was surprised by the way the case played out. Going back and reading Plains Commerce Bank’s cert petition, the petitioner fudged the facts a bit in trying to make the tribal court decision look irresponsible to the Court. Instead of a perfect vehicle (that is, set of facts) that would support a resounding decision rejecting tribal court jurisdiction, the Court was faced with a tribal court that allowed and encouraged non-Indians to participate in the jury pool, a non-Indian bank that had been a significant repeat player in tribal court cases, and especially a non-Indian bank well-known for discriminatory lending practices in Indian country. The cert opposition brief apparently didn’t do a good enough job articulating those concerns and others. Chief Justice Roberts still found four reliable conservative votes for his majority opinion, but at great cost, I think, to the Court’s claim to impartiality in Indian law cases.

[If you don’t think the Court looks for a particular set of facts that are strongly anti-tribal before they’ll hear a case, see the cert pool memos in FMC v. Shoshone-Bannock Tribes, where the Court declined to accept a Montana case brought by a non-Indian company (which they later would in Strate v. A-1 Contractors), and American Management and Amusement v. Barona Group, where the Court declined to accept a challenge to tribal claims based on laches (which they later would in Sherrill v. Oneida Indian Nation).]

Now is a critical time for tribal interests. There may soon be a new Solicitor General, and the Court appears to be relying more on the OSG for Indian law advice (the Court accepted the recommendation to deny the petitions as stated in both invitation briefs filed this Term).

None of this has any import when the OSG files cert petitions against tribal interests in cases where it seems unlikely the government would have chosen to do so before the last few years, but that’s the subject of another posting another time.