Here: Hualapai Cert Opp
Cert petition is here.
Cert Opposition in Rosenberg v. Hualapai
Here: Hualapai Cert Opp
Cert petition is here.
Supreme Court
Dickson v. San Juan County Cert Petition
Dickson v. San Juan County Cert Petition
Lower court materials here.
Questions presented are too long for this blog to reproduce.
Davis v. Minnesota Cert Petition
Interesting case and petition, though I would not have described the Minnesota jurisdictional rule as “aparteid.”
Davis v. Minnesota Cert Petition
Lower court decision here.
Questions presented:
Has the State of Minnesota infringed upon the right to tribal self-government of the Minnesota Chippewa Tribe?
Is the assertion of state civil regulatory authority in this matter preempted under Public Law 280 exceptions?
Smith and Baum on Labor Laws and Indian Country
from ICT:
There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out – if the facts set up the wrong way, irreparable damage will be done to tribal self-government in this field. This is a problem (or opportunity) for tribal sovereignty in the way that the test case ofBrown v. Board of Education was for the civil rights movement.
There’s been plenty of “bad press” about tribes “getting away with” practices in the workplace that may look wrong to outsiders. The assertion of sovereign immunity against individual employees may exacerbate tensions. In dismissing an action for unpaid wages brought by tribal employees, the Crow Court of Appeals recently warned, “If the tribe does not take steps to enact appropriate waivers of sovereign immunity, we believe it is only a question of when Congress will do it for us.” The Crow Tribe later enacted law to protect its workforce.
| There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out. |
It’s probably more likely that the Supreme Court, not Congress, will decide whether tribes and their enterprises must succumb to federal authority over union rights, age and other discrimination laws, and a host of other federal laws governing employment relations. For now anyway, Congress is distracted by other issues. So what will a case look like that goes up to the high court?
With non-Indians taking up employment positions in Indian country in droves, federal agencies are looking for opportunities to enforce federal labor laws of general application against tribes. Tribes cannot assert the sovereign immunity defense against the United States; so these cases go forward. The question becomes whether Congress (when silent on the issue) intended such laws to apply to tribes.
Continue reading
Asian Carp Op/Ed from GTB Chair Derek Bailey
From the Traverse City Record-Eagle:
Three decades ago many thought that the Great Lakes fisheries resources would be ruined by American Indian tribes exercising “treaty-fishing” rights. After the federal courts confirmed these treaty-reserved rights, the tribes demonstrated their primary concern is protection of the Great Lakes fisheries.
Ironically, these “treaty-fishing” rights now might prove crucial in protecting fisheries resources for all of Michigan’s citizens against the Asian carp invasion.
The United States Supreme Court has denied Michigan’s request for an injunction closing the shipping locks outside of Chicago to prevent any further migration of Asian carp into the Great Lakes. In the midst of the competing claims debating the economic losses of closing shipping to the Mississippi River system compared to potential harm to Great Lakes fisheries, all parties — Attorney General Cox, Gov. Granholm, the Army Corps of Engineers and other federal agencies — agree that the damage to the Great Lakes fisheries will be profound.
It has been almost six years since the U.S. Fish and Wildlife Service estimated that “Asian carp could have a devastating effect on the Great Lakes ecosystem and a significant impact on the $7 billion fishery.” During this time the Army Corps of Engineers failed to act promptly, in effect fiddling while Rome burned. To the extent the Army Corps is responsible for the impending disaster, the tribes may be better situated than the state to challenge the federal government.
Sharpe v. United States Cert Stage Briefs
Briefs here (still waiting on OSG brief and reply briefs):
Amicus Brief Supporting Cert Petition
Second Amicus Brief Supporting Petitioner
Lower court materials are here.
Questions Presented:
Rosen: Is Chief Justice Roberts a Radical?
From the New Republic:
Last month, the Supreme Court handed down its most polarizing decision since Bush v. Gore. The 5-4 ruling in Citizens United v.Federal Election Commission called into question decades of federal campaign finance law and Supreme Court precedents by finding that corporations have a First Amendment right to spend as much money as they want on election campaigns, as long as they don’t consult the candidates. It was precisely the kind of divisive and unnecessarily sweeping opinion that Chief Justice John Roberts had once pledged to avoid.
In 2006, at the end of his first term on the Court, Roberts told me and others that he was concerned that his colleagues, in issuing 5-4 opinions divided along predictable lines, were acting more like law professors than members of a collegial court. His goal, he said, was to persuade his fellow justices to converge around narrow, unanimous opinions, as his greatest predecessor, John Marshall, had done. Roberts spoke about the need for justices to show humility when dealing with the First Amendment, adding that, unlike professors writing law review articles, judges should think more about their institutional role. “Yes, you may have another great idea about how to look at the First Amendment,” he said, “but, if you don’t need to share it to decide this case, then why are you doing it? And what are the consequences of that going to be?”
Since then, Roberts has presided over some narrow, unanimous (or nearly unanimous) rulings and some bitterly divisive ones. And so, it’s been hard to tell how seriously he is taking his pledge to lead the Court toward less polarizing decisions. Then came Citizens United, by far the clearest test of Roberts’s vision. There were any number of ways he could have persuaded his colleagues to rule narrowly; but Roberts rejected these options. He deputized Anthony Kennedy to write one of his characteristically grandiose decisions, challenging the president and Congress at a moment of financial crisis when the influence of money in politics–Louis Brandeis called it “our financial oligarchy”–is the most pressing question of the day. The result was a ruling so inflammatory that the president (appropriately) criticized it during his State of the Union address. Continue reading
Michigan Supreme Court Denies Leave for Sault Tribe to Appeal Bouschor Case
The appeal focused on the Michigan court of appeal’s decision to drop Miller Canfield from the suit. It sounds like the suit against Bouschor and some of the other co-defendants will go to trial next.
The materials are here:
Sault Tribe Motion for Leave to Appeal
Lower court materials are here.
Justice Breyer on Cherokee Cases and the Supreme Court’s History
From the Yale Daily News via How Appealing:
Even as a teenager, Supreme Court Justice Stephen Breyer cast a long shadow, University President Richard Levin said Monday.
Breyer and his younger brother, Charles, attended Lowell High School in San Francisco — followed less than a decade later by Levin, who said the highest praise he received as a student was that his school work was the “best since the Breyer brothers.”
Levin then followed Breyer at Stanford and Oxford, but their paths diverged when Levin chose to attend Yale to get his doctorate in economics, and Breyer chose to attend Harvard Law School.
Thirty-five years later, Levin said he could sum up Breyer in a single word.
“He’s awesome,” Levin said, introducing the Justice to a packed Law School Auditorium crowd Monday afternoon for a lecture titled “History: Challenges the Court Has Faced.” In the lecture, Breyer highlighted several key cases in the Supreme Court’s history in an attempt to answer one question that he said foreign judges often ask him about the Court: “Why does it work?”
The answer, Breyer said, is complicated. Over the course of United States history, Americans have come to accept the Court’s decisions as binding — though this was not always true. To demonstrate this, Breyer highlighted prominent cases that illustrate the establishment of the Court’s authority, including Marbury v. Madison in 1803, Worcester v. Georgia in 1832, Cooper v. Aaron in 1958 and Bush v. Gore in 2000.
Breyer began the lecture by praising Chief Justice John Marshall’s wisdom in Marbury v. Madison — which established the Court’s right to review the actions of the executive and legislative branches — without raising the ire of then-President Thomas Jefferson.
“Chief Justice Marshall called upon Houdini Marshall to get out of a jam,” Breyer joked, explaining that Marshall managed to make Jefferson think he had won while actually expanding the Court’s authority.
Breyer then referred to the conflict that arose between Marshall and President Andrew Jackson in 1832, when the Court ruled that the state did not have jurisdiction over Cherokee lands, quoting a famous — though possibly falsely attributed — line from Jackson: “John Marshall has made his decision — now let him enforce it.” Eventually, Breyer said, Jackson came to regret this decision when South Carolina claimed that if Jackson and the state of Georgia did not have to submit to the Court’s decision, South Carolina did not have to pay federal tariffs. This disagreement is widely cited as influential in the start of the Civil War.
“Even Jackson figured out that was not such a good idea,” Breyer said. Continue reading
Jicarilla Apache Tribe v. U.S. — Attorney-Client Privilege Dispute Headed for Supreme Court?
Jicarilla Apache Tribe sued the U.S. in 2002 in the Court of Federal Claims and later asked for inter-agency federal documents where the government claimed an attorney-client privilege. The court disagreed and ordered the production of certain documents. This order here denies the government’s motion for a stay while it petitions to the Federal Circuit for a mandamus order. Now apparently it wants more time to file a cert petition in the Supreme Court.
And here is the Federal Circuit’s order.
Turtle Talk 
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