Here.
New Yorker Profile on Justice Sotomayor
Here.
Supreme Court
US Opposes Michigan’s Bid to Close Chicago Canal in SCT
From SCOTUSBlog:
The federal government, saying that it, too, is worried about an invasive species of fish making its way into Lake Michigan and is doing something about it, urged the Supreme Court on Tuesday to turn down the state of Michigan’s new plea for major Court-ordered steps to head off that migration. It also implied that the Court should not allow Michigan to go ahead with its underlying lawsuit in the Court against Illinois and others, arguing that the proper place for the dispute is in a lower federal court, if anywhere. The new federal document can be found here.
New Scholarship on Tribal Jurisdiction and Intertribal and Intratribal Common Law
Jesse Sixkiller has published, “Procedural Fairness: Ensuring Tribal Civil Jurisdiction After Plains Commerce Bank,” in the Arizona Journal of International and Comparative Law.
Here is an excerpt from the conclusion:
Today, as this Note has demonstrated, there remains a clear divide between state and tribal civil jurisdiction powers. While states have come to enjoy a form of civil jurisdiction that can reach beyond their boundaries regardless of state citizenship, tribes remain confined to specific lands within their territory when it comes to jurisdiction over nonmembers.341 It has become more evident that the reasons are based on fairness to the nonmember parties, particularly to non-Indians.342 That stigma of unfairness must be addressed in order to ensure that jurisdiction over nonmembers is not similarly compromised on tribal lands, and possibly to enlarge tribal jurisdiction on nonmember fee lands.
Cobell Plaintiffs File Cert Petition
From BLT (miigwetch to A.K.) (cert petition, with appendices, is here):
The lawyers in the long-running Indian trust litigation in Washington find themselves in an odd position: filing a petition for certiorari just two weeks after the sides announced a $1.41 billion settlement to end the case.
This week, lawyers for lead plaintiff Elouise Cobell filed their petition with the U.S. Supreme Court to challenge a ruling in July in the U.S. Court of Appeals for the D.C. Circuit. The settlement is not final and so the lawyers are keeping open their options.
The appeals court ruling erased a $455.6 million award—restitution for the government’s breach of trust in managing billions of dollars flowing from natural resources tied to Indian lands. The court also dismissed a finding that an historical accounting of individual Indian trust accounts is impossible. A three-judge panel said the government has no obligation to conduct a complete historical accounting—just “the best accounting possible” with whatever money Congress decides to appropriate.
“As a result of that holding, the government is responsible only for whatever accounting it chooses to pay for, and Indian beneficiaries will never know what happened to billions of dollars of their assets that the United States purportedly held in trust for them subject to the most exacting fiduciary standards,” Cobell’s lawyers, including D.C. solo practitioner Dennis Gingold and a Kilpatrick Stockton team, said in their petition for certiorari. “The court of appeals’ holding turns traditional, controlling trust law on its head, and is akin to giving the fox sole discretion to determine the security features of the henhouse.”
Cobell’s lawyers, who include Kilpatrick Stockton partner Keith Harper, said in a footnote on the first page of their petition that the plaintiffs and the government executed a settlement Dec. 7 that is contingent on legislation that authorizes payment and, in addition, final approval from the presiding trial court judge.
Filings in Michigan Asian Carp Suit
From SCOTUSBlog:
In a new phase of the decades-long feud over the environmental health of the Great Lakes, Michigan has sued Illinois directly in the Supreme Court, this time over Michigan’s worries about the invasion of a fish species threatening to local fish populations. As an Original lawsuit, the case will be tried directly in the Supreme Court, if the Justices agree to let Michigan file its complaint. (News articles describing the lawsuit are linked in the blog’s Tuesday Roundup, see below.)
Here is the question presented in the lawsuit: “Whether, because of changed circumstances, the Court should reopen Nos. 1, 2, and 3, Original, to consider Michigan’s request for a Sujpplemental Decree to address a new and substantial infringement of Michigan’s rights — the threatened invasion of the Gr;eat Lakes by injurious fish species — resulting from the Lake Michigan diversion project created and as now maintained by Illinois, the [Metropolitan Water Recalamation District of Greater Chicago] District, and the {U.S. Army} Corps {of Engineers] that is the subject of this case.”
A fact sheet describing the background of the new fish controversy ishere. A news release from the Michigan attorney general’s office is here. The text of a motion for a preliminary injunction is here The lawsuit itself — technically, a motion to reopen a 1980 Supreme Court decree and to issue a new ruling on the fish mgiration question – can be found here. A 142-page appendix is here.
News Coverage of Michigan v. Illinois/US in Asian Carp Suit
One question might be … why wait until the Supreme Court goes into its holiday recess?
From the Detroit News:
Detroit — Michigan Attorney General Mike Cox is calling on the U.S. Supreme Court to flex its muscle in the fight to keep invasive Asian carp from Lake Michigan. In a press conference this morning, Cox announced his intention to sue the State of Illinois, the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force them to close off waterways leading to the lake.
His move comes just weeks after authorities poisoned a section of the Chicago Sanitary and Shipping Canal to halt the spread of the carp, which are considered a major threat to the ecosystem of Lake Michigan. That project produced one Asian carp above an electrical barrier designed to keep the fish out of Lake Michigan.
“With the finding of (Asian carp) DNA within 6 miles of Lake Michigan recently … quite simply, now is the time,” Cox said. “These agencies have not acted quickly enough.”
Cox is calling for:
Scholarship Roundup: New Articles on American Indian Religious Freedom and Reservation Diminishment Case
David Bogen and Leslie F. Goldstein have published “Culture, Religion, and Indigenous People” in the Maryland Law Review. The abstract:
The Constitution treats culture, religion, and government as separate concepts. Different clauses of the First Amendment protect culture and religion from government. For several decades, the Supreme Court of the United States interpreted the First Amendment as offering religion greater protection against interference than was offered to culture, but the Supreme Court largely dissolved these constitutional differences when confronted with issues posed by the religious practices of Native Americans. With some indigenous Americans, the lines between culture, religion, and even government blur–challenging the Supreme Court’s assumptions about the Constitution. The uniqueness of the claims of Native Americans pushed the Supreme Court toward recognition of a common constitutional standard for religion and cultural protection, but also justified political exemptions targeted at tribal behavior that do not extend to other religions or cultures.
And the Washington Law Review published a comment by Charlene Koski called “The Legacy of Solem v. Bartlett: How Courts Have Used Demographics to Bypass Congress and Erode the Basic Principles of Indian Law.” Here is that abstract:
Oglala Sioux Tribe Amicus Brief in Wolfchild/Zephier Case
Here is that brief, drafted by the legendary Mario Gonzales — Oglala Sioux Tribe Amicus Brief
Cert Petition in In re Shinnecock Smokeshop
So much Shinnecock news lately … In re Shinnecock Smokeshop Cert Petition
An excerpt:
The TTAB affirmed the EA’s refusal to register Petitioner’s marks on different grounds than that relied upon by the EA in the Final Office Action. The Federal Circuit affirmed. Petitioner showed below that his Tribe is obviously not a “Person” or “Institution,” and a refusal to register under Section 2(a) of the Trademark Act, under either ground was error. Further, Petitioner presented a documented prima faciecase of discriminatory pattern of practice of the USPTO in previously, and even presently, granting trademark registrations to non-Native Americans with similarly situated marks.
Indian Law-Related Cert Petitions under Review Today at Supreme Court
The Supreme Court will decide whether or not to grant cert in two Indian law-related cases, Benally v. United States (No. 09-5429), and Pyke v. Cuomo (No. 09-242). Benally may have a reasonable chance of being granted (though SCOTUSBlog does not list it as a petition to watch), if for no other reason that some amici filed briefs in support of the petition.
Turtle Talk 
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