Supreme Court – Page 164

Commentary on the Status of the Arizona Snowbowl Cert Petition

May 13, 2009May 13, 2009Matthew L.M. Fletcher1 Comment

OK, so now the United States has come out in opposition to the Navajo Nation’s cert petition in the Snowbowl case. A few comments:

1. Too bad any effort to persuade the Obama Administration to change course in this case failed. We understand that with very, very new SG Kagan on board there was likely little chance to make that happen, but it’s still disappointing. What would be really disappointing is if the government is unwilling to consider settlement and dismissal under Rule 56 if the Court does grant cert, where the government has time to consider its position.

2. We think it’s fairly well established that the government was more likely wrong than not that there is no split in authority under the “substantial burden” test. The en banc opinion in the Ninth Circuit was a big stretch, and went way beyond the other circuits that have confronted the question. The question now is whether the Supreme Court thinks this is the right vehicle to decide the question. There may be one decent reason to think it is not — these tribes have already litigated the Snowbowl to the Supreme Court once before in Wilson v. Block, 708 F.2d 735, and the Court denied cert back then.

But of course, that doesn’t really matter if the Court wants this one. And there’s no reason to think it doesn’t. How many times has the Court used Indian law and Indian religions as a battleground for its religious freedom doctrines? Bowen, Lyng, Smith I, Smith II….

Obama Administration Sides with Arizona Snowbowl

May 13, 2009Matthew L.M. Fletcher1 Comment

Here are the two cert opposition briefs filed in Navajo Nation v. USFS:

Federal Cert Opposition

Arizona Snowbowl Cert Opposition

ICT on State Opposition to Carcieri Fix

May 10, 2009Matthew L.M. Fletcher

From ICT:

Money and power drive states’ interest in Carcieri ‘fix’

Seventeen attorneys general, seeking property taxes and more state power over sovereign Indian lands, have written to the ranking members of the Senate Committee on Indian Affairs and the House Resources Committee urging them to move slowly – if at all – on any Carcieri “fix” and to include them in discussions on the Interior secretary’s authority to take land into trust for the nations.

“A March 13 story in Indian Country Today said Indian country officials are calling for a quick legislative fix so that state and local interests will not have time to make arguments to Congress that the Carcieri decision should stand. The undersigned believe it would not be in the best interests of all stakeholders, both Indian and non-Indian, to rush a legislative fix and to ignore legitimate state and local interests,” the attorneys general wrote.

The Carcieri fix would have Congress amending the 1934 Indian Reorganization Act by deleting the phrase “any tribe now under federal jurisdiction” or adding the words “or hereafter” after the word “now.”

The fix would correct a February ruling by the U.S. Supreme Court, which interpreted “now” to mean then – 1934. The case centered on a 31 acre parcel of land purchased by the Narragansett Indian Tribe for elderly housing. The Interior Department agreed to place the land in trust, but the state and town fought that action all the way to the high court, where the justices ruled 6-3 that the Interior secretary could not take the land into trust because the tribe was not “federally recognized” in 1934.
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Navajo Nation’s Amicus Brief in Voting Rights Act Case

May 7, 2009Matthew L.M. Fletcher1 Comment

From the ASU Indian Law blog:

The Indian Legal Clinic and Sacks Tierney filed an amici brief in the above-reference case regarding the constitutionality of the Section 5 preclearance requirements. Indian Legal Clinic Student Attorney Nikki Borchardt (3L), Adjunct Professor and ASU Alum Judy Dworkin and Professor Patty Ferguson Bohnee prepared the brief.

Brief of the Navajo Nation, Anthony Wounded Head, et al. Amici are concerned that if the Court declares that the reauthorization of Section 5 is unconstitutional, American Indian voting rights will be significantly impacted and result in a reversal of the strides made in recent years to ensure greater Indian voter participation. This would negatively impact many American Indian voters who only recently secured the right to vote, continue to face discrimination in voting, and who cannot shoulder the financial burden to bring lawsuits under Section 2 of the VRA.

Possible Supreme Court Nominees and Their Federal Indian Law Record

May 7, 2009May 7, 2009Matthew L.M. Fletcher2 Comments

We previously posted on four possible Supreme Court nominess after President Obama’s election — Judges Wood and Sotomayor, Dean Kagan, and former SG Waxman. We update those materials, and add a few more possibilities (Judges McKeown and Wardlaw, and Professors Karlan and Sullivan). In no particular order….

1. CA2 Judge Sonia Sotomayor

Judge Sotomayor has written the majority opinions in two unexceptional Indian law cases, Catskill Development v. Park Place Entertainment (2008 ) and United States v. White (2001). Catskill Development involved the authority of the National Indian Gaming Commission to review and opine on gaming management contracts, and White involved the federal prosecution of Mohawk Indians for failure to report income to the IRS. Judge Sotomayor has some Indian law exposure, but not on anything controversial.

Judge Sotomayor also voted with the majority in Bassett v. Mashantucket Pequot (2000), a case affirming the sovereign immunity of the tribe.

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Supreme Court Denies Cert in Indian Law Cases Today

May 4, 2009Matthew L.M. Fletcher2 Comments

The Supreme Court denied cert in two petitions captioned Cook v. Avi Casino Enterprises (Nos. 08-929, 08-930). It’s on page 4 of this order list.

This is good news for Indian Country (and for my student writing a paper on this subject — you reading this, J.?). There is a split of authority on the question of whether tribal business enterprises are immune from suit in a state law dram shop action, as we have discussed before. But I’m guessing the Court thinks it’s either unimportant or too much a state law question, since each state has its own version of dram shop laws and applies its own understanding of tribal sovereign immunity. But who knows….

Justice Souter’s Federal Indian Law Legacy

May 3, 2009May 3, 2009Matthew L.M. Fletcher1 Comment

Justice Souter’s retirement at the end of this Term all but demands a recount of his voting record in Supreme Court cases involving federal Indian Law. He was part of the Court for nearly 20 Terms, and voted in 41 Indian law cases (for a list of Indian law cases, see our Supreme Court page). Excluding two votes in cases that are difficult to characterize (Negonsott and Youpee), Justice Souter voted for tribal interests 16 times and against them 23 times.

Several themes run through Justice Souter’s Indian law votes. He usually sided with tribal interests in the areas of treaty rights and treaty interpretation, as well as in trust cases involving the United States as a defendant. He also sided with tribal interests in federalism cases involving the 11th Amendment. But he typically ruled in favor of states and against tribal interests in tax cases, especially after the mid-90s, and in cases involving tribal jurisdiction over nonmembers.

Overall, he left an indelible footprint on federal Indian law. His legacy likely is not yet determinable. He only wrote four opinions for the Court, and six other opinions concurring or dissenting. Justice Souter will probably be best known in Indian law circles for his devastating concurring opinion in Nevada v. Hicks, but his overall record is relatively favorable to tribal interests. And, in our opinion, the Hicks concurrence served as a powerful wake-up call to tribal advocates who hadn’t noticed how far the Court had drifted away from tribal positions.

Justice Souter’s Indian law record can be divided into three loose phases. In the first phase, dating loosely from his first vote in Oklahoma Tax Commission v. Citizen Potawatomi to his powerful dissent in Seminole Tribe (see the Boston Globe article on this case), Justice Souter’s voting record was pretty good — 6 votes in favor of tribal interests and 4 against (excluding a couple cases that could be construed as ties). New-Justice Souter became close to Justice Blackmun in their few years together on the Court, and Justice Souter joined Justice Blackmun’s otherwise-solitary dissents in South Dakota v. Bourland and Hagen v. Utah. He voted three times against the Oklahoma Tax Commission (Citizen Potawatomi, Sac and Fox, and Chickasaw Nation). However, he wrote the majority opinion favoring the Indian Health Service in Lincoln v. Vigil, an administrative law case.

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Boston Globe: Souter Surprised Conservatives with Dissent in Seminole Tribe

May 3, 2009Matthew L.M. Fletcher2 Comments

From the Boston Globe:

When he was nominated to the Supreme Court in 1990, David H. Souter vowed to uphold the “original intent” of the Constitution, words that his backers interpreted to mean he would join the court’s conservative bloc to support states’ rights and limit the reach of federal power.

But as a Supreme Court justice, Souter has often infuriated his initial supporters by repeatedly siding with the court’s liberal wing on issues from abortion to crime, all the while arguing that the founders would have supported his interpretations.

Indeed, legal scholars said, Souter’s two most significant legacies on the court have been his resistance to the erosion of federal power in the 1990s and his insistence that there need not be a conflict between respecting the founders’ intent and backing liberal causes.

Souter’s writing “shows us you can be an originalist without being a conservative,” said Linda Coberly, a Chicago lawyer and former Supreme Court clerk.

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