Supreme Court

Asian Carp Plea Denied

Matthew L.M. Fletcher

From SCOTUSblog:

The Supreme Court refused on Tuesday to order emergency measures sought by the state of Michigan to stop the migration of an invasive fish species, Asian carp, toward Lake Michigan from rivers and a sanitary canal in Illinois.  Without comment, the Court refused to issue a permanent injunction that would have closed waterway locks and required other temporary measures in reaction to the discovery of the carp upstream in Illinois rivers.  The Court’s order did not dispose of Michigan’s plea to reopen a decades-old decree to address the carp migration issue on its merits. That will come later in cases 1, 2 and 3 Original, Wisconsin, Michigan and New York v. Illinois.

News Coverage Update on Asian Carp Case

Matthew L.M. Fletcher1 Comment

From How Appealing:

“Something’s Fishy at the High Court”: Tony Mauro of The National Law Journal has this report.

And last Sunday’s edition of The Chicago Tribune contained an article headlined “Asian carp: Take that carp and fry it; River invader is more tasty morsel than maligned in some quarters.”

Supreme Court Grants Cert in Criminal Restitution Case Involving Mescalero Apache Man

Matthew L.M. Fletcher

From Indianz:

The U.S. Supreme Court has agreed to hear a restitution case involving a member of Mescalero Apache Nation of New Mexico.

Brian Russell Dolan pleaded guilty to a violent attack on the reservation. He was sentenced to prison time and parole but restitution wasn’t determined by a federal judge until months later.

Dolan says the Mandatory Victims Restitution Act requires a judge to act within 90 days. The 10th Circuit Court of Appeals did not agree but the Supreme Court will review the decision.

The case is Dolan v. US, No. 09-367.

Continue reading →

Op/Ed re: Carcieri Fix

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

The Grand Traverse Band of Ottawa and Chippewa Indians celebrates its 30th anniversary of federal recognition this year, but nothing, apparently, is sacred in ever-changing federal American Indian policy.

A controversial Supreme Court ruling last year blocks many American Indian tribes recognized by the U.S. Interior Secretary after 1934 from making more land-to-trust applications.

The high court’s Carcieri vs. Salazar ruling on Feb. 24, 2009, and politics surrounding a proposed legislative fix, show just how frustrating, confounding and shameful federal American Indian policy has been over more than two centuries of American history — and apparently still is.

The ruling appears to have no effect on the Grand Traverse Band, which was recognized in 1980. In fact, the Interior Department approved trust status for 78 acres in Antrim County on Dec. 10.

The ruling also does not appear to affect two other area tribes — the Little Traverse Bay Bands of Odawa Indians in Emmet County and the Little River Band of Ottawa Indians in Manistee County, both recognized in 1994 by federal statute. Continue reading →

Amicus Brief Supporting Cert Petition in Wolfchild v. United States

Matthew L.M. Fletcher

Here: Historic Shingle Springs Miwok Amicus Brief

Other materials in this case are here.

Indian Country Implications for NFL Supreme Court Case?

Matthew L.M. Fletcher

A guest post from MSU 2L Adrea Korthase:

Following the Supreme Court denial of cert in Harjo v. Pro Football, Inc., a new group of plaintiffs has emerged to challenge the laches defense. However, maybe there is the potential for a new defendant as well.

On Wednesday, January 13th, the Supreme Court will hear American Needle v. National Football League. American Needle brought a claim against the NFL for violating antitrust statutes when the football league signed an exclusive license agreement with Reebok. The district court granted summary judgment to the NFL and the Seventh Circuit affirmed the district court’s decision, agreeing that the NFL could act as a single entity. The Supreme Court granted cert.

There is wide ranging speculation as to what will happen if the NFL prevails and the Court defines the league as a single entity. Those who are concerned cite everything from higher ticket prices to union lockouts as possible outcomes. However, if the NFL is considered a single entity, it may help the mascot fight.

If the Court determines that the NFL is a single entity and has the power to license and market their intellectual property, it is possible that the Redskin’s trademark would be part of that property. A determination of a change in hands, a change in control, could weaken a laches defense because it would have been impossible to bring an action against a single entity that did not exist until now.

In addition, because a laches defense, unlike statute of limitations, is a decision of the court, the change in the NFL’s distinction may be influential. It is possible that a court will find that the NFL has a greater responsibility, as a single entity, to rid the league of racist and disparaging trademarks.

Grand River Enterprises Files Cert Petition in Tobacco Case

Matthew L.M. Fletcher

Here is the cert petition in Grand River Enterprises Six Nations v. Beebe: Grand River Enterprises Cert Petition

And the lower court opinion: CA8 Opinion

The questions presented:

1. In 2002, Petitioner, Grand River Enterprises Six Nations, Ltd. (“Grand River”), commenced a lawsuit against the Attorneys General of thirty-one (31) States in federal district court in New York, challenging model legislation adopted by their respective States to implement the Tobacco Master Settlement Agreement (“MSA”). The Second Circuit Court of Appeals has twice held that Petitioner’s antitrust and Commerce Clause challenges to the model legislation state a claim for relief under Fed. R. Civ. P. 12(b)(6). Although the State of Arkansas adopted the same model legislation, the Arkansas Attorney General was not included in that lawsuit, because, at that time, the State of Arkansas had not enforced, nor threatened enforcement of, the model legislation against Petitioner. In this later-filed action against the Arkansas Attorney General, the Court of Appeals for the Eighth Circuit, with one Judge dissenting, has held that challenges to the model legislation in Arkansas – challenges identical to those permitted by the Second Circuit – fail to state a claim. As such, the question presented is whether, despite the decisions of the Second Circuit holding and acknowledging that Petitioner has stated a claim pursuant to Fed. R. Civ. P. 12(b)(6) that model legislation enacted by thirty-one (31) States to implement the MSA violates the Sherman Act, the Eighth Circuit erred in affirming dismissal of Petitioner’s Sherman Act challenge to the same model legislation enacted by the State of Arkansas, pursuant to Fed. R. Civ. P. 12(b)(6).

2. Whether, despite the decisions of the Second Circuit holding and acknowledging that Petitioner has stated a claim pursuant to Fed. R. Civ. P. 12(b)(6) that model legislation enacted by thirty-one (31) States to implement the MSAviolates the Commerce Clause, the Eighth Circuit erred in affirming dismissal pursuant to Fed. R. Civ. P. 12(b)(6) of Petitioner’s Commerce Clause challenge to the same model legislation enacted by the State of Arkansas.

Continue reading →

UCLA Law Student Note on Oliphant Fix

Matthew L.M. Fletcher3 Comments

Samuel E. Ennis published his Comment, “Reaffirming Indian Tribal Court Criminal Jurisdiction over Non-Indians: An Argument for Statutory Abrogation of Oliphant,” (pdf) in the UCLA Law Review. The abstract:

This Comment challenges Oliphant v. Suquamish Indian Tribe, which precludes Indian tribal courts from criminally prosecuting non-Indians. Given that non-Indians often comprise the majority of reservation populations, and that the current upswing in tribal gambling enterprises brings scores of non-Indians onto reservations, it is no longer feasible for the federal or state governments to maintain the predominant criminal jurisdictional authority over Indian country. Non-Indian authorities are often situated far from reservations and do not have the manpower to thoroughly investigate and prosecute the high number of reservation crimes that fall under their jurisdiction post-Oliphant. In response, this Comment proposes a politically and constitutionally acceptable statute that would abrogate Oliphant and return criminal jurisdiction to the tribes. Continue reading →

Cert Petition Filed over Nooksack Casino

Matthew L.M. Fletcher1 Comment

Here is the petition in North Country Community Alliance v. Salazar: North County Community Alliance Cert Petition

Lower court materials are here.

The questions presented:

Must the National Indian Gaming Commission establish its jurisdiction over a tribe’s potential gaming sites, by determining that such sites qualify as “Indian lands”, before approving the tribe’s gaming ordinance?

Does the National Indian Gaming Commission act ultra vires when it approves a tribal gaming ordinance which allows construction and operation of a gaming facility on land which is never determined by the Commission to be “Indian lands”?

There doesn’t appear to be any reason to grant cert in this case. By the petitioner’s own admission, there is no circuit split. This is a case of first impression before the Court, and that usually means a death knell for the petition.

News Coverage of Asian Carp Case

Matthew L.M. Fletcher

From SCOTUSblog:

Following an editorial yesterday decrying the recent suit filed against the State of Illinois by the State of Michigan, the Chicago Tribune has a news story on recent fillings questioning the science behind Michigan’s claim that carp emerging through locks from Illinois waters could endanger the local fish.  The filings, in defense of Illinois, come from the Illinois Department of Natural Resources, the Metropolitan Water Reclamation District of Greater Chicago and the U.S. Army Corps of Engineers.  UPI reports that the Obama Administration has come out in favor of Illinois as well, while the Christian Science Monitor has Michigan’s side of the story.