Supreme Court

Supreme Court Cert Petition in Border Fence Case

Matthew L.M. Fletcher2 Comments

The case is captioned County of El Paso v. Napolitano (No. 08-751). Ysleta del Sur Pueblo is one of the petitioners. SCOTUSblog has it as one of the “petitions to watch” for the April 17 conference.

From SCOTUSblog:

Docket: 08-751
Title: El Paso, Texas, et al., v. Janet Napolitano, Secretary of Homeland Security, et al.
Issue: Whether the grant of authority to the Secretary of Homeland Security to “waive all legal requirements” necessary to ensure rapid construction of a border fence is an unconstitutional delegation of legislative power or sufficient to preempt state and local law.

Third Turtle Talk Poll — Whether the Supreme Court Will Grant Cert in the San Francisco Peaks Case

Matthew L.M. Fletcher2 Comments

Will the Supreme Court grant cert in Navajo Nation v. United States Forest Service?

The new Solicitor General — Elena Kagan — has until May 8 to file an opposition to the Navajo Nation cert petition. From there, the petitioners can file a reply brief, and the case will head to the Conference, likely in June. Assuming the government opposes the petition, the Court historically is extremely likely to deny cert, especially in a non-criminal case. However, the petitioners have made a credible case that the Ninth Circuit’s en banc opinion — defining “substantial burden” under the Religious Freedom Restoration Act to be far more narrow than any other federal circuit — has created a viable circuit split.

What do you think?

Indigenous Law and Policy Center Occasional Papers — Updated

Matthew L.M. Fletcher

We’ve posted several recent papers. Here is the website for all of our papers dating back to 2006.

2009-01
Advising – and Suing – Tribal Officials: On the Scope of Tribal Official Immunity by Matthew L.M. Fletcher and Kathryn E. Fort
2009-02
The Ethics of Pushing the Envelope in Indian Law Cases by Matthew L.M. Fletcher
2009-03
Supreme Court Reversal of Carcieri: Implications for Reaffirmed Michigan Indian Tribes by Novaline D. Wilson
2009-04
The Origins of the Indian Child Welfare Act: A Survey of the Legislative History by Matthew L.M Fletcher

SCOTUSblog Recap of Office of Hawaiian Affairs Decision

Matthew L.M. Fletcher

From SCOTUSblog:

On Tuesday, March 31st, the Supreme Court issued a unanimous opinion in Hawaii v. Office of Hawaiian Affairs, reversing the Hawaii Supreme Court’s holding that the federally enacted Apology Resolution bars the State of Hawaii from selling to third parties any land held in public trust until the claims of native Hawaiians to the lands have been resolved. The Court first held that it has jurisdiction to review the Hawaii Supreme Court’s opinion because it rested on the Apology Resolution. It then found the Hawaii Supreme Court’s interpretation of the Apology Resolution to be erroneous, and held that federal law does not bar the State from selling land held in public trust. Accordingly, it remanded the case for the Hawaii Supreme Court to determine if Hawaiian law alone supports the same outcome.

Justice Alito, writing for the Court, first rejected respondents’ argument that the Court lacks jurisdiction to hear the case because the decision below rested on adequate and independent state grounds. Justice Alito relied on Michigan v. Long, which held that the Court has jurisdiction so long as the “the adequacy and independence of any possible state law ground is not clear from the face of the opinion.” Because the Hawaii Supreme Court opinion lacked a plain statement that it rested solely on state law, and instead explicitly relied on the Apology Resolution multiple times, the Court had “no doubt that the decision below rested on federal law,” and, thus, that it had jurisdiction to review the Hawaii Supreme Court’s interpretation of federal law.

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Navajo Nation Commentary

Matthew L.M. Fletcher5 Comments

The outcome in Navajo Nation was expected and a bit old news by now. Maybe it’s time for a retrospective on tribal suits against the United States, and their possible impact on federal Indian law, especially the trust relationship. Is it possible that the upswing of tribal money claims against the United States have somehow indirectly undermined some of the key foundations of federal Indian law? It may be.

We know that from 1959 to 1987 or so, tribal interests won about 59 percent of their cases in the Supreme Court. That trend has reversed dramatically since then, dropping to about 25 percent since 1987. Some of the interesting hallmarks of those successful cases in the 1960s and 1970s was the successful assertion of a federal government interest.

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Supreme Court Rules Against Navajo Nation

Matthew L.M. Fletcher

Here is the opinion from Justice Scalia. No dissent.

California v. San Pasqual Cert Petition

Matthew L.M. Fletcher

This is the same kind of petition California filed a month ago in parallel cases involving Chachil Dehe Band and Rincon Band.

california-v-san-pasqual-band-cert-petition

Written Testimony in House Resources Hearing on Fee to Trust

Matthew L.M. Fletcher1 Comment

From the House Resources Committee:

Witnesses:

Ms. Colette Routel
Visiting Assistant Professor, University of Michigan Law School
Assistant Professor, William Mitchell College of Law

Mr. Michael J. Anderson
Partner
AndersonTuell, LLP

Mr. Donald Craig Mitchell, Esq.
Anchorage, AK

Opening Statement
Chairman Nick J. Rahall, II


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Supreme Court Decides Hawaii v. Office of Hawaiian Affairs

Matthew L.M. Fletcher1 Comment

Here is the opinion.

Coushatta Tribe v. Meyer & Assoc. a “Petition to Watch”

Matthew L.M. Fletcher2 Comments

SCOTUSBlog lists Coushatta Tribe v. Meyer & Assoc. as a petition to watch for the April 3, 2009 conference. A cursory review of the cert petition shows that there may be a conflict in the state courts about whether the tribal court exhaustion doctrine enunciated by National Farmers Union and Iowa Mutual applies to state courts. The conflict seems to be with the Connecticut courts, and perhaps the New York and Wisconsin courts (though there are good reasons to doubt whether those courts have really embraced the doctrine), which have held that the tribal court exhaustion doctrine applies to its courts. Other courts — Louisiana, Arizona, and others — have rejected the application of the doctrine to their courts.

My sense is that the Court will deny this petition, though it is definitely worth watching. Three key reasons: (1) Louisiana’s course of action was to treat this common law doctrine as applying only to federal courts, preserving its own choice whether or not to adopt this federal court doctrine (a choice it made in the negative, just as Connecticut chose to adopt it, presumably of its own free will), making this dispute more a state law question than a federal law question; (2) the tribe is the petitioner; and (3) this is a common law case, rather than a federal statutory interpretation case or a federal constitutional case.

If a state court followed National Farmers Union, complaining loudly that it had no choice because of federal bullying or something, then there probably would be more Supreme Court interest. There doesn’t seem to be a federal government interest in the tribal court exhaustion doctrine that would be apparent to the Court, a serious problem I suspect is behind much of the Court’s recent 25-year retreat from its earlier federal Indian law jurisprudence.

A potential wildcard is that the state court’s opinion seems to run a little roughshod over the tribe’s immunity, but this seems to be limited to the tribe’s own laws, something that wouldn’t be likely to interest the Court.

From SCOTUSblog:

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