From How Appealing:
“Kilpatrick Stockton’s Mark Levy Dead”: This post appears at “The BLT: The Blog of Legal Times.”
And the ABA Journal’s “Law News Now” blog has a post titled “Kilpatrick Stockton Lawyer Dead from Gunshot Wound.”
Attorney Mark I. Levy served on the Advisory Committee on the Federal Rules of Appellate Procedure….
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Levy worked on one of the recent cert petitions.
Here is the letter to the ranking members of the SCIA and the House Resources Committee from the attorneys general of 17 states — carcieri-state-ags-ltr-to-hill-april-24-2009
The letter asserts that Carcieri is a symptom of a greater frustration felt by state governments relating to the current fee to trust process and asking Congress to consider state interests. Importantly, the letter offers nothing suggesting what those interests might be or what these AGs want in a potential Carcieri fix.
There are at least two reasons for this, I suspect. First, 17 AGs probably can’t agree on what those state interests are. And second, maybe these state AGs are leaving unsaid the obvious — they want more control over Indian lands, perhaps even veto power over fee to trust transfers and over activities on trust land.
And that’s what the Supreme Court handed state governments with their very wrongheaded decision in Carcieri. A Carcieri cure might be worse than the disease.
It is inevitable that interested parties will want to know, or at least speculate, on which Indian tribes are truly affected by Carcieri v. Salazar. Interior and/or BIA may be drawing up lists. NCAI and NIGA are probably doing the same. And now so is NIGC. Update: Not so, according to Chairman Hogen. But I think it may be a mistake for the federal agencies to do so, and to trumpet the fact, as NIGC seems to be doing. The key thing to remember is that Carcieri is an absurdity, maybe not based on the statute or even the legislative history (the SCT has spoken), but in reality.
NIGC’s list is “a list of those tribes recognized after 1934,” according to Indianz. So what does that mean? It could mean, plausibly, every tribe. Interior has never kept a “list” of tribes under federal recognition and didn’t even keep a formal list of federally recognized tribes until 1994. And so maybe there was no tribe meeting these phantom definitions until Interior started informing tribes that they were about to have a Secretarial election under the IRA, post-IRA. And we’re pretty sure Interior’s decision on which tribes got to vote were arbitrary and often capricious. If NIGC’s going to start with the list of tribes that had IRA elections in the 1930s, then that list will be wrong to some extent.
And if a list is wrong, even as to one tribe, then the federal agency is wrong to generate such a list. Even if it doesn’t publish the list, it is probably subject to a FOIA request. Tribes incorrectly designated will be legally disadvantaged.
Finally, not to pick on the NIGC or Chairman Hogen (both have gotten some bad and unfair press lately), NIGC is not the primary interpreter of “under federal jurisdiction” or federal recognition. Interior is. And Interior has 75 years of history to review before it can come to any conclusions about any one tribe.
There is really no reason for any federal agency to make a list right now. It’ll be subject to litigation as soon as any one decision on the list becomes important, and I’d hate to see NIGC or Interior lose a fight on Chevron or Skidmore deference if they try to push their conclusions based on any such list.
The Supreme Court denied cert earlier this week in two of the cases that are part of a trilogy of California gaming cases (here is the Court’s order list). Those cases were docket nos. 08-931 (CACHIL DEHE BAND OF WINTUN) and 08-1030 (RINCON BAND OF LUISENO MISSION). A third petition is still pending, but one expects that one to be denied as well (no. 08-1208 — San Pasqual).
All of the petitions are available here.
Here is today’s order list, and commentary on El Paso v. Napolitano from SCOTUSblog:
The Court took no action on a new attempt to challenge the constitutionality of the sweeping powers Congress gave to the federal government in 2005 to set aside federal, state and local laws that may get in the way of building a 700-mile-long “secure fence” along the U.S.-Mexico border. The Court turned down the first test, last June. The new case is El Paso County, et al., v. Napolitano (08-751). The dispute could present the Court with an opportunity to make use of the rare power to strike down a federal law on the theory that Congress had given away too much of its legislative power to the Executive Branch. That power has not been used for 74 years.
The cert petition is here. Ysleta del Sur Pueblo is a petitioner.
From the Onion:
Although three years have passed since both men joined the court, Chief Justice John Roberts, 54, and Associate Justice Samuel Alito, 59, said they still feel foolish whenever more senior justices refer to cases decided “way before” they joined the court. “One time—one time—I asked what World-Wide Volkswagen v. Woodson was, and Stevens goes off on this tear about me still being in diapers when Earl Warren was inventing Miranda rights,” Alito said of the 88-year-old justice appointed by President Gerald Ford. “God, sorry I didn’t get my law degree before World War I, geez.” According to court clerks, the two younger justices occasionally get so frustrated with the constant teasing that they take a bus to go spend time with their friends in the 9th Circuit.
Here is the government’s cert opp in this important sovereign immunity case — federal-cert-opp-marceau
The Supreme Court Project’s materials are here and the cert petition is here.
Originally printed at http://www.indiancountrytoday.com/opinion/columnists/43030782.html
On April 6, the U.S. Supreme Court denied the Navajo Nation any compensation for government actions that allowed Peabody Coal to extract millions of tons of Navajo coal at low rates for 45 years. The decision raises deep issues about the meaning and continuing viability of what is known as the “trust doctrine” in federal Indian law.
The original 1964 lease established a maximum royalty rate of 37.5 cents per ton of coal. U.S. Department of Energy historical data show the average market price of coal of all kinds in 1963 was $4.55. Thus, the original royalty rate was 8.24 percent. The rate was “subject to reasonable adjustment” by the secretary of the interior on the 20th anniversary of the lease and every 10 years thereafter. DOE data show that by 1984 the 37.5 cents per ton rate yielded one to two percent of gross proceeds, far less than the original 8.24 percent.
In 1984, the area director of the BIA, pursuant to the presumed federal “trust” authority, raised the lease rate to 20 percent of gross proceeds, as requested by the Navajo Nation. Peabody filed an administrative appeal and requested the secretary of the interior to postpone decision or to rule in Peabody’s favor. Thereafter, the secretary and Peabody representatives met privately and the secretary postponed his decision. The Navajo resumed negotiations with Peabody and a rate of 12.5 percent was agreed to. The secretary approved the amended rate.
In 1993, the Navajo filed suit against the United States, alleging the secretary’s actions constituted a breach of trust. The Court of Federal Claims found the secretary had “violated the most basic common law fiduciary duties owed the Navajo Nation” by acting in Peabody’s best interests rather than those of the Navajo. That court nevertheless concluded the breach of trust did not require any compensation, because “the trust relationship necessary for our jurisdiction does not exist.”
The record of the case shows the entire leasing arrangement was premised on federal supervisory authority, the core of the so-called “trust doctrine.” Under this doctrine, the federal government asserts paramount ownership of and power over Indian lands. The Peabody lease and rates were negotiated in this framework and only became valid after the secretary’s approval.
Leaving aside, for the moment, the corruption of administrative process by the secretary’s private meeting with Peabody, the question that arises from this case is, “What does the federal trust relationship mean if it provides a presumption of authority over Indian nations but carries no responsibility to them?”
Most voters do not see the Supreme Court granting cert in Navajo Nation v. USFS — 67 percent. About 26 percent think the Court will grant cert. Seven percent see a settlement before the Court reaches an outcome.
From the NYTs:
Justice Clarence Thomas has not asked a question from the Supreme Court bench since Feb. 22, 2006. He speaks only to announce his majority opinions, reading summaries in a gruff monotone. Glimpses of Justice Thomas in less formal settings are rare.
But he turned up in a Washington ballroom the other night to respond to questions from the winners of a high school essay contest. His answers and the remarks that preceded them provided a revealing look at Justice Thomas’s worldview these days.
Turtle Talk 
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