Is here — seneca-cert-petition
Lower court materials are here.
Question presented:
Whether the Court of Appeals impermissibly expanded the intent of the Indian Self-Determination Act by applying a “liberal” standard to bring within its scope libelous conduct directed by tribal officials against a federal agency official?
From Lloyd Miller, partner in the law firm of Sonosky, Chambers, Sachse, Endreson & Perry, LLP:
In only two months President Obama has already begun to make his mark in forging a new era in Native American affairs. After eight years marked mostly by neglect, this is welcome news, for Tribal leaders have been yearning for the profound change that can only come from a committed White House — change that calls upon the Nation not only to remember its forgotten First Americans, but to craft a new deal that embraces tribal governments as true partners in the Nation’s family of governments. Under President Obama, all indications are that this new deal will include promoting genuine tribal self-determination, honoring the unique place Indian Tribes occupy under the Constitution, and honoring fully the trust responsibility born of treaties and the Nation’s tragic early history with Indian Tribes.
Most Americans are only dimly aware of today’s tribal governments, and for many that knowledge is limited to casinos. Few know that less than one-half of America’s 562 Tribes actually operate gaming facilities of any kind (nearly half of them in California). Few know that, of those that do, the well-known top 10% account for over 50% of total tribal gambling revenues, while roughly half the Tribes account for less than 10%. The fact is, across Native America gambling is commonly little more than a breakeven proposition, providing local employment and moderately enhanced health, educational and public services.
Still, popular interest in Indian gambling has eclipsed the real picture of Native America, which remains largely out of the public eye: communities living in third world conditions without basic running water or sanitation and suffering disproportionately high rates of communicable diseases; reservations and villages with little physical infrastructure; child suicide rates 2.5 times the national average (and for teens in some regions, 17 times the national average); overwhelmed law enforcement and justice systems funded at 40% the national average, with half of all offenders on the street due to dangerously overcrowded facilities; and crumbling schools with over $800 million in deferred maintenance, producing children who score lower in reading, math and history than every other ethnic group in America.
Although in many places conditions are improving, for too many in too many places America has gravely neglected its First Americans.
Continue reading
Here is the cert opp from Harrah’s — harrahs-cert-opp
Here is the cert petition.
Here is the cert opp — meyer-assoc-cert-opp
The cert petition is here.
There’s no reason to take a position on the Federal Circuit’s decision reversing the trial court in the Wolfchild case, but there are several big-picture issues that may have affected the Circuit’s decision or otherwise demonstrate that something is horribly wrong in federal Indian law.
First, the lawyer’s history propounded by the trial court, the Federal Circuit, and necessarily the parties is troubling. Let us not forget, as it would be very easy to do from the Federal Circuit’s opinion, that this whole thing started with the violent and illegal acts of the United States government. It was the United States’ actions that precipitated the so-called “rebellion” of the Dakota people near Fort Snelling. And it was the local non-Indian populace, the Army, and President Lincoln that characterized the “rebellion” as a series of “massacres.” The people called the “Loyal Mdewakanton” and the people, predominantly plaintiffs, that were not so “loyal” were all part of this community utterly ravaged by the United States. The end of this war in 1862 resulted in the largest mass execution of anyone in American history — about 40 men and boys, all Dakota. And the majority of Dakota people in the area were rounded up and sent on a death march that included at least three or four states, killing many, many people.
None of that is relevant to this case, apparently. But it really should be.
I’ll be presenting “Factbound and Splitless” today at UC-Berkeley Law School. Here’s a taste….
Here is the Court’s order list for today. Seminole’s bad news is on page 3.
This was to be expected, though at some point the Court will grant cert on an Indian Gaming Regulatory Act case, if enough state supreme courts come through with strange opinions. It might be awhile….
I couldn’t really do it in 800 words, but my ICT editorial necessarily left out several points I still want to make about Carcieri and its impact. Here is the first. Others will follow.
The Carcieri fix will not be an easy sell. Tribal interests have relatively recently “fixed” a Supreme Court decision by asking Congress for help — the so-called Duro fix. But consider how many other “fixes” never got off the ground: (1) Oliphant Fix (numerous incarnations); (2) Seminole Tribe Fix; and (3) Hicks Fix.
Why did the Duro Fix get through while the others did not? First, the only constituency that would have opposed the Duro Fix was nonmember Indians, the most famous (later on) being Russell Means, who traveled from city to city arguing against tribal criminal jurisdiction over nonmember Indians after he got arrested at Navajo. Second, state and local governments had some general interest in limiting tribal criminal jurisdiction (the same as they do with jurisdiction over non-Indians) but the interest is just that — general. And a bit disingenous in a lot of places in the country.
In all of the hullabaloo surrounding Carcieri and Navajo Nation II, you may have forgotten that the Supreme Court heard oral argument in a claim involving the Native Hawaiians, Hawaii v. Office of Hawaiian Affairs. Like the other two cases, the Supreme Court very clearly granted cert in this case in order to reverse. The only real discussion in this case was how far the Court would go in reversing.
The Hawaii Supreme Court held below that a Congressional apology resolution from a few years back had legal effect sufficient to prevent the State from selling Native Hawaiian trust lands. The question presented has to do whether the apology resolution has that legal effect.
The petitioner’s argument started right off with the moderate wing of the Court assuming that the apology resolution has no legal effect. They pressed the Hawaii Attorney General for reasons why the Court should do anything more than simply vacate and remand. In short, the question presented is already answered, probably 9-0.The only real question is whether to allow the Hawaii SCT to reconsider their decision under state law grounds alone, or whether to foreclose even that possibility by holding that federal law prevents the State from having a trust relationship to Native Hawaiians vis a vis this land.
From ICT:
The Supreme Court’s Feb. 24 decision in Carcieri v. Salazar is a significant defeat for the Narragansett Tribe, and perhaps for hundreds of other Indian tribes not federally recognized in 1934. Carcieri seemingly overturns the Department of Interior’s 70-year-plus practice of taking land into trust for Indian tribes federally recognized after 1934. But while the decision will be disruptive and expensive for Indian tribes affected, it might not be utterly devastating.
Carcieri held that the secretary has no authority to take land into trust for the Narragansetts because they are not an eligible Indian tribe as defined by the 1934 Indian Reorganization Act. Only tribes that meet the definition of “Indian tribe” under the IRA are eligible for the fee to trust benefit; in other words, according to the court, tribes that were “under federal jurisdiction” on June 1, 1934. The secretary of the interior did not recognize the Narragansett Tribe as an Indian tribe at that time, and so the court held that the secretary may not take land into trust for the tribe under the IRA. The court’s cramped reading of “now” is the worst kind of judicial formalism, like that recently critiqued by Professor Alex Skibine in the American Indian Law Review.
It is important to parse out exactly which tribes – and which land parcels – are affected by this decision. First, Indian lands already in trust with the secretary of the interior are safe, because the United States already owns the land and is immune from a suit seeking to reverse a fee to trust acquisition. That means tribes operating business enterprises on trust land will be protected by the federal government’s immunity. Second, Indian tribes such as the Pokagon Band of Potawatomi Indians with special statutes authorizing the secretary to take land into trust for them, usually as a result of a congressional recognition act or land claims settlement act, also are exempted.
| The Supreme Court’s Feb. 24 decision in Carcieri v. Salazar is a significant defeat for the Narragansett Tribe, and perhaps for hundreds of other Indian tribes not federally recognized in 1934. |
Interestingly, the final paragraph in Justice Clarence Thomas’ majority opinion – a major litigation-starter – appears to assume that the Carcieri case is limited to its facts, and therefore only applies to the Narragansett Tribe. The concurring opinions from Justices Stephen Breyer and David Souter, as well as Justice John Paul Stevens’ dissent, suggest that numerous other tribes that can demonstrate that they were “under federal jurisdiction” in 1934, even if “the Department did not know it at the time,” in Breyer’s words. The concurring and dissenting justices named several tribes that fit into this category, including the Stillaguamish Tribe, the Grand Traverse Band of Ottawa and Chippewa Indians, and the Mole Lake Tribe. In short, according to Justice Breyer, a tribe that could show it was party to a treaty with the United States, the beneficiary of a pre-1934 congressional appropriation, or enrollment with the Indian Office as of 1934. The Narragansett Tribe, according to the court, was under the jurisdiction of Rhode Island in 1934, not the Department of the Interior, and so they are not eligible.
These exceptions to the general Carcieri rule mean that Indian tribes in the twilight of the concurring opinions may be engaged in expensive litigation to prove that they were “under federal jurisdiction” in 1934. Such litigation may require the heavy expenditure of funds for expert witnesses, forcing some tribes to undergo the strange and humiliating process of earning a kind of federal recognition all over again. In the coming weeks, the Obama administration should take the lead in defining what “under federal jurisdiction” means to blunt the effect of the Supreme Court’s decision.
| The Obama administration should take the lead in defining what “under federal jurisdiction” means to blunt the effect of the Supreme Court’s decision. |
Regardless, now is the time for Indian country to test the waters in Washington D.C., to see if the Obama administration is serious about change and to press the Democratic-controlled Congress for a Carcieri “fix.” It might not take much legislation, just a quick rewording of the definition of Indian tribe in the IRA to remove the word “now.” The administration and Congress may be sympathetic, given that the Roberts Court seems to go out of its way to punish Indian tribes. A Carcieri “fix” pitched as merely reversing a bad Supreme Court decision would not work a major change on the federal-tribal-state relationship because it would merely be restoring the pre-Carcieri state of affairs that had existed for over seven decades.
For the Narragansett Tribe, this decision is yet another slap in the face to a tribe that has done nothing wrong but what it can to survive. For six justices, the Narragansetts did not pass the test of “federal jurisdiction,” a test that no one could have known in 1934 they would have been required to pass. Nothing could be more arbitrary and capricious.
Matthew L.M. Fletcher is associate professor at the Michigan State University College of Law and director of the Northern Plains Indian Law Center. He is an enrolled citizen of the Grand Traverse Band of Ottawa and Chippewa Indians.
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