Supreme Court

Indian Law Conference at Harvard Law School on April 6, 2009

Matthew L.M. Fletcher3 Comments

Tribal Justice: The Supreme Court and the Future of Federal Indian Law (Tribal Justice Conference Poster)
Monday, April 6, 2009
Ames Courtroom, Austin Hall, Harvard Law School

The Supreme Court’s treatment of American Indians has long been viewed as uniquely reflective of the rise and fall of our shared democratic faith. A flurry of recent cases has signaled to Native nations a disturbing paradigm shift – that of a judiciary now openly hostile to tribal interests. This timely conference brings together leading scholars and practitioners for a frank discussion regarding the impact the Roberts Court is having on Indian Country.

Agenda below the fold….

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Is There a Money Claim Against the US Post-Carcieri?

Matthew L.M. Fletcher4 Comments

I see now that the Dept. of Interior is (un)officially segregating Indian tribes for purposes of trust acquisitions (see email reported on Indianz), shutting down (apparently) some trust applications and allowing others to proceed, that the first impacts of Carcieri have reached Indian Country, as expected.

Maybe it’s worth revisiting what the Supreme Court did in Carcieri from a slightly different point of view. Arguably, a money claim against the United States for failure to properly recognize certain Indian tribes in 1934 has now accrued.

Consider. The Court has effectively created classes of Indian tribes, as seemingly established by the email:

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MSU Working Paper 2009-03 — Carcieri’s Impact on Michigan Tribes

Matthew L.M. Fletcher1 Comment

Novaline Wilson (MSU Law ’08) has written a nice paper on the impact of Carcieri v. Salazar on Michigan tribes, many of whom (8 out of 12) were not federally recognized in 1934. It is here. Note that she wrote this before Carcieri was decided. An excerpt:

The Supreme Court must consider unique historical circumstances of Michigan Indian tribes before effectively barring these administratively aggrieved tribes from the federal land-to-trust process. Michigan Indian tribes have a distinct political history as treaty tribes that were illegally administratively terminated in a “situation [that] is not simply an injustice of major proportions, it is a travesty of logic that boggles the rational mind.” Carcieri was correctly decided at the administrative appeals level, by the District Court, and by the First Circuit Court of Appeals. This case is not only without merit, it directly contravenes the BIA’s authority to fulfill their federally mandated trust obligations to tribes. The BIA has to administer the same general federal fiduciary obligations to all tribes, regardless of the year the federal government finally got around to “formally recognizing” tribes. As demonstrated through Michigan Indian tribal history, an outright bar on land-to-trust for those tribes not recognized in 1934 would not only eviscerate fundamental Indian law and administrative law principles, it would demonstrate deliberate ignorance of hundreds of years of American history between Indian tribes and the federal government.

ACS Issue Brief — Domestic Violence in Indian Country & Tribal Sovereignty

Matthew L.M. Fletcher

From the American Constitution Society:

ACS is pleased to distribute an Issue Brief by Matthew L.M. Fletcher, Director of the Indigenous Law and Policy Center and Associate Professor at the Michigan State University College of Law, entitled, “Addressing the Epidemic of Domestic Violence in Indian Country by Restoring Tribal Sovereignty.” In this Issue Brief, Professor Fletcher argues that American Indian women residing on Indian reservations suffer from domestic violence and physical assaults at rates that far exceed those faced by other women, and that the perpetrators of these crimes often go unpunished. Professor Fletcher contends that the current state of federal Indian law has contributed to this epidemic of domestic violence in Indian Country. The author first notes that the Supreme Court has held that tribal governments do not have jurisdiction over domestic violence misdemeanors committed by non-Indians in Indian Country, and second that although federal and state authorities may prosecute these crimes, they often do not do so because of a lack of resources and other factors.

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Arizona Snowbowl Case — Will US Recommend Cert Grant, Too?

Matthew L.M. Fletcher

As Indianz reports, the Navajo Nation v. United States Forest Service cert petition is brewing. A bunch of amici have filed supporting the cert petition, which definitely gets the attention of the Supreme Court (or at least the cert pool).

There are times when the respondent to a cert petition agrees with the petitioner that the Court should grant cert and hear the case. It happened in Negonsott v. Samuels (link to cert pool memo) and it could happen again … maybe.

There isn’t a classic or clear circuit split, but the CA9 in the Snowbowl case has come up with the most restrictive way to interpret RFRA’s “substantial burden test,” and I bet the United States would like to see the CA9’s rule expanded nationwide. And since American Indian religious freedom rights don’t do very well in the SCT, the United States might think this is the right vehicle and take a gamble. I’m being pretty cynical, and it is pretty unlikely, but you never know.

The Solicitor General and Indian Law

Matthew L.M. Fletcher1 Comment

The Senate just confirmed the nomination of Harvard Dean Elena Kagan as U.S. Solicitor General. The Solicitor’s Office, home the of the so-called “Tenth Justice,” has a great deal to say about Indian law. In particular, in Indian law cases not directly involving the United States as a party, the Solicitor General will often file an amicus brief on the merits, and the Court often invites the Solicitor to opine on whether or not to accept an Indian law cert petition. The SG’s recent briefs are here.

During the eight years of the Bush Administration, the U.S. Solicitor General’s Office filed 10 invitation and amicus briefs, covering 8 total cases. Of the 10 briefs, five supported tribal interests strongly, with another two partially supporting tribal interests. Interestingly, of the five strongly pro-tribal positions taken by the SG, the Supreme Court only agreed with the SG’s position once. The Court agreed to deny the cert petition filed by Teck Camino Metals in the 2007 Term in accordance with the SG’s position, but rejected the SG’s positions in Plains Commerce Bank, Wagnon, and Sherrill (twice — one on the merits and one at the petition stage).

This result is fairly remarkable, and worth more study. I wonder if the SG’s views have so little weight with the SCT in any other area of law, and if these outcomes are part of a longer trend in Federal Indian Law.

Here is the quick survey of the Solicitor’s amicus briefs and invitations, the position taken, and the impact of the brief during the Bush Administration:

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Results of Second Turtle Talk Poll: Worcester v. Georgia Most Important Indian Law Precedent

Matthew L.M. Fletcher1 Comment

Here are the results of our second poll — what is the most important Federal Indian Law Supreme Court opinion?

  1. Worcester v. Georgia — 32 percent
  2. Montana v. United States — 18 percent
  3. Oliphant v. Suquamish Indian Tribe — 11 percent
  4. Johnson v. M’Intosh — 8 percent
  5. Carcieri v. Salazar — 7 percent
  6. Santa Clara Pueblo v. Martinez — 6 percent
  7. California v. Cabazon Band — 6 percent
  8. Sherrill v. Oneida Indian Nation — 5 percent
  9. Lone Wolf v. Hitchcock — 2 percent

No other case received more than 1 percent of the vote.

Personally, I would have voted for Santa Clara Pueblo v. Martinez. Tribal sovereign immunity, power to tribal courts to decide internal disputes, membership criteria to be decided by the tribes.

Second Turtle Talk Poll: The Most Important Supreme Court Opinions in Indian Law

Matthew L.M. Fletcher6 Comments

Ok, here’s poll number 2! We’ll release results Friday.

What is the most important Supreme Court opinion in Federal Indian Law?

Possible Side-Effect of Carcieri? More Non-Indian Gaming (in Ohio)?

Matthew L.M. Fletcher

From the Columbus Dispatch:

Ohio’s four largest cities each would get a casino and local governments and schools would share most of a projected $600 million a year in tax revenue, gambling proponents said today in introducing the third casino proposal aimed at the statewide ballot in four years.

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“This proposal was carefully crafted to reflect what Ohioans want in a gaming proposal,” said Eric Schippers, spokesman for Penn National Gaming Inc., which switched sides to sponsor this year’s issue. “We’re going to build a broad-based coalition to support this proposal.”

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Penn National has armed itself with a February U.S. Supreme Court decision that forbids Indian tribes from placing land in trust — often a prelude to building a casino — if the tribes received federal recognition after 1934. There currently are no federally recognized tribes in Ohio, but casino opponents last year said a commercial casino could open the floodgates to Indian casinos in the state.

ICT on the Politics of the Carcieri Fix (and the Dictionary Act)

Matthew L.M. Fletcher

From ICT:

WASHINGTON – Excited rumbles trickled through Indian country after a letter to the editor was published recently in Indian Country Today, asking whether a little known legislative doctrine could help reverse the Supreme Court’s ruling in Carcieri v. Salazar.

The writer of the letter, lawyer Joseph E. Bernstein, noted that the Dictionary Act modifies the present tense in all federal statutes to include the future tense, unless the context indicates otherwise.

Given that the court seemingly ruled in contradiction to the law – deciding that the phrase “now under federal jurisdiction” of the Indian Reorganization Act refers to those tribes that were under federal jurisdiction only when the IRA was enacted in 1934 – Bernstein asked whether tribal and federal lawyers could get a rehearing.

Department of Justice lawyers arguing the case hadn’t mentioned the Dictionary Act in their arguments, nor had tribal legal experts, so Bernstein thought they might be able to raise a new point of law focused on the future tense language of the law.

Could it be that simple? Could there really be a quick legal fix to help tribes prevail after the Supreme Court upended many tribal, federal and legal understandings of the IRA by restricting the BIA’s longstanding tribal land into trust process? If not a legal fix, couldn’t Congress just make a fast fix?

Legal and legislative experts say the only thing simple regarding those questions are the answers to them: No, no, and maybe not.
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