Supreme Court

Attea v. N.Y. Dept. of Taxation Cert Petition

Matthew L.M. Fletcher

Here: Attea v. Dept. of Taxation Cert Petition.

Questions presented:

1. Whether New York State usurps the United States Congress’ plenary power to regulate commerce with the Indian Tribes under Article 1, Section 8, Clause 3 of the US Constitution by imposing a direct tax and onerous record keeping burdens directly on a Federally Licensed Indian Trader.

2. Whether, if Indian Trader income is state taxable, New York State violates a nonresident’s Due Process rights and the Commerce Clause by taxing an indiscriminate amount of a nonresident’s income solely because there is insufficient proof to show the amount of income allocable to out of State sources.

Lower court opinion here.

ICT Editorial by Kaighn Smith re: Tribal Work Laws

Matthew L.M. Fletcher1 Comment

From ICT:

Imagine this scenario: “If you don’t sleep with me, you can kiss your job goodbye,” the male supervisor warns the female waitress at the tribe’s gaming facility. (We’ll call her Joyce.) She consistently says no. His threats continue and even escalate.

Although he threatens to make her life miserable if she tells anyone, Joyce seeks help from the Equal Employment Opportunity Commission; EEOC informs her that federal sexual harassment laws exclude tribes. She goes to tribal court. She finds she has no remedy under tribal law. Overwhelmed by her boss’ intimidation, Joyce quits her job. Unemployed and unable to afford her rent, she moves in with her brother, Bob.

A host of other laws that are silent about their application to tribes pose similar threats to tribal sovereignty.

Bob, a union organizer, is outraged. He starts talking to Joyce’s co-workers and learns that other women have experienced similar harassment. Other workers complain that management plays favorites with tribal members, giving them better jobs and shifts than non-members. Bob says that with union representation, management would be held accountable for workers’ rights.

Continue reading →

Will Justice Stevens Soon Retire?

Matthew L.M. Fletcher

Adam Liptak at the New York Times thinks so (here).

New Scholarship on Williams v. Lee

Matthew L.M. Fletcher

Dewi I. Ball has posted “Williams v. Lee (1959) – 50 years later: A Re-assessment of One of the Most Important cases in the Modern-era of Federal Indian Law” on BEPress (download here). Here is the abstract:

It is 50 years since the landmark decision of Williams v. Lee was handed down by Justice Hugo Lafayette Black and the United States Supreme Court. At the time, the case was a watershed event that signified the legal resurgence of Native America in Federal Indian law and in particular, the renaissance of the Indian sovereignty doctrine, inherent tribal sovereignty and the principles of Worcester v. Georgia. There can be no doubt that the eloquently constructed opinion by Hugo Black brought positive news for all Native Americans, especially in light of the process of Termination that was being pursued by Congress and the United States President. However, against this nascent sense of renewal and hope, the Williams case also began what became an insidious trend in the decision-making process of the U.S. Supreme Court; the weakening of the Indian sovereignty doctrine and some of the key attributes of tribal power; namely civil, criminal and taxation authority. Much of the academic literature in the field of Federal Indian law and Native American studies points to the importance of the Williams case as one which strengthened Native American sovereignty but other academics, from the 1990s, have questioned whether the case was an overall success for the authority of Native Americans on their reservations in the complexity of what is Federal Indian law. Although this article will analyze the re-affirmation of the Indian sovereignty doctrine and inherent tribal sovereignty in the Williams opinion, through the use of archival materials from the private papers of U.S. Supreme Court Justices, it will also be the first article in Native American studies to examine behind the scenes discussions and processes used in the Williams case and argue that the weakening of the Indian sovereignty doctrine began in 1959.

Scholarship on this case is burgeoning. Hon. Raymond Austin’s book “Navajo Courts and Navajo Common Law” touches upon the case from the point of view of the Navajo Nation government, which treated it as a kind of test case.

This work parses through the papers of Justice Brennan for an inside look at how the Court decided the case. A sobering work well worth reading.

Michigan Supreme Court Hearing on Proposed Michigan Court Rules Involving ICWA

Matthew L.M. Fletcher1 Comment

This Wednesday at 9:30 AM, the Michigan Supreme Court will consider changes to the Michigan Court Rule that will “incorporate specific provisions of the Indian Child Welfare Act into the relevant rules that relate to adoptions, guardianships, child protective proceedings, and juvenile status offenses.” The proposed changes are here.

Comments on the proposed changes are here:

William J. Brooks, Chair, Standing Committee on American Indian Law, State Bar of Michigan (12/10/09)

* Supplemental Comments (01/25/10)

Honorable Dorene S. Allen, Midland County Probate Court (01/12/10)

Matthew L.M. Fletcher, Association Professor, Michigan State University College of Law; Director, Indigenous Law and Policy Center; and Council Member, American Indian Law Section, State Bar of MIchigan (01/25/10)

Salon’s “This Week in Crazy: Clarence Thomas”

Matthew L.M. Fletcher1 Comment

Here.

Supreme Court Colloquy on Indian Tribes as Intervenors in Original Jurisdiction Cases

Matthew L.M. Fletcher

Today, the Supreme Court held that two non-sovereign entities may intervene in an original jurisdiction case (South Carolina v. North Carolina). Of note, it appears that for the first time, the Court allowed a non-sovereign entity to intervene in an original jurisdiction case. The majority’s reference to Indian tribes is trouble, especially in light of the dissent’s response.

Here is the majority:

Over the “strong objections” of three States, for example, the Court allowed Indian tribes to intervene in a sovereign dispute concerning the equitable apportionment of the Colorado River. Arizona v. Cali-fornia, 460 U. S., at 613. The Court did so notwithstanding the Tribes’ simultaneous representation by the United States. Id., at 608–609, 612.

Seems relatively innocuous, until one reads the dissent:

The result is literally unprecedented: Even thoughequitable apportionment actions are a significant part of our original docket, this Court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never. That is because the apportionment of an interstate waterway is a sovereign dispute, and the key to intervention in such an action is just that—sovereignty. The Court’s decision to permit nonsovereigns to intervene in this case has the potential to alter in a fundamental way the nature of our original jurisdiction, transforming it from a means of resolving high disputes between sovereigns into a forum for airing private interests.

And later:

Take Arizona v. California, 460 U. S. 605 (1983). There we allowed several Indian Tribes to intervene in a water dispute. Id., at 615. As the Court in that case made clear, however, the Indian Tribes were allowed to intervene because they were sovereign entities. Ibid. The Court distinguished New Jersey v. New York on that veryground. See 460 U. S., at 615, n. 5.

It seems the majority implicitly characterized Indian tribes (and the City of Port Arthur, Texas) as a non-sovereign in order to stress the non-importance of today’s decision. One shouldn’t read too much into this, of course. But still…. Uggh.

United States Files Cert Petition in Supreme Court re: Procedure in Indian Trust Cases

Matthew L.M. Fletcher3 Comments

Here is the petition: United States v Tohono O’odham Nation Cert Petition.

Suffice it to say that the chances of this petition being granted are pretty good — about two-thirds (or more) of all of the United States’ cert petitions are granted.

Here are the questions 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.

Here are the lower court materials. And a decision in a similar case.

Additional News Coverage of Asian Carp Debacle

Matthew L.M. Fletcher

From How Appealing:

“Asian carp DNA found in Lake Michigan; High Court inaction angers Mich. leaders”:The Detroit News has an update that begins, “On the same day the U.S. Supreme Court announced it would not take immediate action to prevent Asian carp from reaching Lake Michigan, DNA samples indicate the fish may already be there.”

The Detroit Free Press has a news update headlined “Granholm: White House summit about carp needed.”

The Chicago Tribune has a news update headlined “Army Corps: Asian carp DNA found in Lake Michigan.”

And James Vicini of Reuters reports that “Michigan request denied in Great Lakes carp case; High court won’t order closing of two Chicago-area locks; Federal government said Michigan was unlikely to prevail; Closing locks would hurt shippers.”

AP Article on Asian Carp Case

Matthew L.M. Fletcher

From the AP via How Appealing:

TRAVERSE CITY, Mich. (AP) — The U.S. Supreme Court on Tuesday refused to order immediate closure of shipping locks near Chicago to prevent Asian carp from infesting the Great Lakes.

The court rejected a request by Michigan for a preliminary injunction to close the locks temporarily while a long-term solution is sought to the threatened invasion by the ravenous fish. The one-sentence ruling didn’t explain the court’s reasoning.

Asian carp, primarily bighead and silver varieties, have been migrating up the Mississippi and Illinois rivers toward the Great Lakes for decades. They have swarmed waterways near Chicago leading to Lake Michigan.

Scientists fear that if they reach the lakes, they could disrupt the food chain and endanger the $7 billion fishery.

The biggest Asian carp can reach 4 feet in length and weigh 100 pounds while consuming up to 40 percent of their body weight daily in plankton, the foundation of the Great Lakes food web.

Many scientists say they could starve out popular species such as trout and salmon.

They also are spooked by passing motors and often hurtle from the water, colliding with boaters forcefully enough to break bones.

Officials poisoned a section of the canal in December after discovering genetic material that suggested at least some carp might have eluded an electric barrier on the Chicago Sanitary and Ship Canal and could be within six miles of Lake Michigan. If so, the only other obstacles between them and the lake are shipping locks and gates.

Last week, the U.S. Army Corps of Engineers said additional carp DNA – but no live fish – had been found in three different spots along the Chicago River within a mile of where it flows into Lake Michigan.

Michigan, joined by Minnesota, New York, Ohio and Wisconsin and the Canadian province of Ontario, asked the high court to order the locks closed as a stopgap measure while considering a permanent separation between Lake Michigan and the Mississippi River basin. Continue reading →