Supreme Court

Justice Breyer on the Cherokee Cases

Matthew L.M. Fletcher2 Comments

Justice Breyer’s new book on constitutional law, Making Our Democracy Work, includes an entire chapter on the Cherokee cases. Justice Breyer long has invoked the plight of the Cherokees in talks he has given at various law schools and elsewhere.

Likely, the story of Worcester and the Cherokees is well known by the readers of this blog, and Justice Breyer’s rendition is largely accurate and respectful. He is certainly sympathetic to the Cherokees. ButJustice Breyer uses the Cherokee cases within the framework of his overall thesis in Making Our Democracy Work — the Cherokee cases serve as a warning to the modern Court about the limits of the Court’s power.

Readers of the book familiar with federal Indian law might scratch their heads wondering why the Cherokee cases are used in this way. If anything, federal Indian law post-1832 mostly has been used as a cudgel against the constitutional and property rights of Indian Country.

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SCOTUSBlog: Madison County v. Oneida Indian Nation at Petition to Watch for This Week’s Conference

Matthew L.M. Fletcher1 Comment

Since the United States offered no amicus brief on the question, there is the possibility of a CVSG as well.

From SCOTUSblog:

Madison County v. Oneida Indian Nation
Docket: 10-72
Issue(s): (1) Whether tribal sovereign immunity from suit bars taxing authorities from foreclosing to collect lawfully imposed property taxes; and (2) whether the ancient Oneida reservation in New York was disestablished or diminished.

Certiorari-Stage Documents:

NARF Press Release on the Supreme Court’s Denial of Cert in the Kaltag Tribal Council Case

Matthew L.M. Fletcher

Here: Kaltag press release

Supreme Court Update: Iron Thunderhorse v. Pierce CVSG

Matthew L.M. Fletcher

Today’s order list is here.

The Supreme Court asked for the views of the Solicitor General in Iron Thunderhorse v. Pierce, a Religious Land Use and Institutionalized Persons Act case.

In nice news for Indian Country, the Supreme Court denied cert. in Gould v. Cayuga and Hogan v. Kaltag Tribal Council. Both cases had appeared as petitions to watch, and the Supreme Court had previously CVSG’d the Kaltag (the OSG recommended denial of the petition).

Petitions denied included the challenge to the tobacco Master Settlement Agreement (Maybee v. Idaho), and Schagticoke’s challenge to the denial of its federal recognition (Schaghticoke v. Salazar), Fort Peck v. HUD, Hoffman v. Sandia, and Metlakatla v. Sebelius.

NYTs Editorial on “First Monday”

Matthew L.M. Fletcher

From the NYTs:

The Supreme Court enjoys all but free rein in selecting which cases to review. From the end of one term in the summer until the start of the next, on the first Monday in October, the work of the court is to sift through thousands of petitions from parties that lost in one of the federal appeals courts or highest state courts and are eager for the justices to reverse their fate.

The kinds of petitioners favored say a lot about the court’s interests and biases. The Warren court, eager to champion individual rights, chose a large number of petitions from downtrodden people. The Rehnquist court, looking for opportunities to vindicate states’ rights, favored petitions from the states.

The Roberts court has championed corporations. The cases it has chosen for review this term suggest it will continue that trend. Of the 51 it has so far decided to hear, over 40 percent have a corporation on one side. The most far-reaching example of the Roberts court’s pro-business bias was Citizens United v. Federal Election Commission. By a 5-to-4 vote, the conservative justices overturned a century of precedent to give corporations, along with labor unions, an unlimited right to spend money in politics.

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Suquamish Reply Brief in Support of Its Cert Petition

Matthew L.M. Fletcher

Here: Suquamish Reply in Support of Cert Petition

Supreme Court Fails to Grant Cert in Indian Law Cases

Kate Fort2 Comments

The Supreme Court failed to grant cert in any of the Indian law cases at the long conference yesterday. Our list of the cases is here.  The Court has already granted cert in United States v. Tohono O’odham, and it is possible they might still CVSG a case.

Truckee-Carson Irrigation District Cert Petition

Matthew L.M. Fletcher

Here is the petition in Board of Directors, Truckee-Carson Irrigation District v. United States: Truckee-Carson Irrigation District Cert Petition.

Lower court materials here.

Questions presented:

1. Whether the Congress violates the separation of powers doctrine under Article III of the United States Constitution by enacting retroactive legislation that requires a court to accept a past federal regulation as currently valid, enforceable and immune from judicial challenge, the underlying premise of which was previously found by an all-inclusive federal water rights adjudication proceeding as violating vested water rights confirmed under a final federal district court water decree and judgment.

2. Whether a federal court has either the legal or equitable jurisdiction to make an award of pre-judgment or postjudgment in-kind interest, that is, interest that is payable in property, in this case water as interest, and not money.

Updated Preview of 2010 Supreme Court Term

Matthew L.M. Fletcher5 Comments

One petition has already been granted (United States v. Tohono O’odham), and three petitions are up for review at today’s conference. There could be six or more Indian law-related Supreme Court cases decided this Term, more than any Term in the last few decades. Note that the of the seven cases listed here, only one was filed by an Indian or Indian tribe (no. 4, the Iron Thunderhorse case, which likely has no real chance of being granted). The rest were filed by either a state government or subdivision, or the federal government.

As noted in our earlier comments on today’s SCOTUSblog petitions to watch, petitions filed by tribal interests tend to disappear. That means that petitions brought by tribal interests to challenge the denial of Schaghticoke federal recognition (which, if you’ll recall, was initially favorable until a private meeting with then-Secretary Norton and several powerful Connecticut politicians), Indian self-determination act challenges, a challenge to the application of the tobacco Master Settlement Act to on-reservation sales, and others probably will die on the vine.

Here’s an update to our early preview (available here).

Petition Granted:

1. United States v. Tohono O’odham Nation (09-846)

Question presented:

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over “any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States” or its agents “pending in any other court.” The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.

This is a case in which Justice Kagan will have to sit out, due to her participation as Solicitor General. For the T.O.N., it might be a good thing, in that the respondents now only need four votes to prevail.

Petitions on the SCOTUSBlog “Petitions to Watch” for Today’s Long Conference:

2. Hogan v. Kaltag Tribal Council (09-960)

Question presented:

Whether, for purposes of the Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq., a tribal court has
concurrent jurisdiction with state courts to initiate and adjudicate a child-custody proceeding about an Indian child, when the child and her biological mother are tribal members and the nonmember biological father does not object to tribal-court jurisdiction, and when the child is not domiciled or residing within a reservation. [Note: This is the OSG’s statement of the question presented, brought in opposition to the petition.]

3. Gould v. Cayuga Indian Nation (10-206)

Question presented:

I. Whether the New York State Court of Appeals in its 4-3 decision in Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614 (2010), properly interpreted federal law on a matter it believed the United States Supreme Court had not yet addressed in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance.

II. Whether in that decision the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua despite the fact that the Cayuga Indian Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.

4. Iron Thunderhorse v. Pierce (09-1353)

Question presented:

Whether the court of appeals misinterpreted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., to require only a minimal showing that a prison grooming rule which concededly imposes a substantial burden on religious exercise is the “least restrictive means of furthering [a] compelling governmental interest.”

Additional Petitions Not Yet Distributed but Likely to be “Petitions to Watch”:

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SCOTUSBlog Petitions to Watch for the “Long Conference” and Commentary

Matthew L.M. Fletcher

Three petitions have made the famed SCOTUSblog list of petitions to watch for the long conference today. We wonder whether virtually every Indian law related case makes the list these days, but that’s not really true.

Interesting cases that are on the docket but don’t make the list are Fort Peck v. HUD (10-195), Maybee v. Idaho (09-1471), Metlakatla v. Sebelius (09-1466), and Schaghticoke v. Salazar (09-1433). Note that all four of these petitions were filed by tribal interests. As we say every time, note the general trends in Indian law cases in the Supreme Court petition stage: (1) the United States’ petitions are granted about 2/3 of the time, or more; (2) petitions by states and their subdivisions are granted about 1/3 of the time; (3) petitions by tribes are almost never granted. And even the OSG’s influence wanes when supporting tribal interests.

Other cases that rightfully do not belong on this list include Hoffman v. Sandia Pueblo (10-4) for reasons we’ve already discussed.

Here is the link, and the SCOTUSblog coverage of each petition:

Title: Gould v. Cayuga Indian Nation
Docket: 10-206
Issue(s): 1) Whether, on a matter that it believed the Supreme Court had not yet addressed, the New York Court of Appeals properly interpreted federal law in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance; and 2) whether the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua, notwithstanding that the Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.

Certiorari-Stage Documents

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