Supreme Court

Commissioner of Public Lands v. New Mexico Cert Petition

Matthew L.M. Fletcher

This new filing (commissioner-public-lands-cert-petition) is an appeal of a New Mexico appellate court decision (here). The case also involves the Jicarilla Apache Nation, Navajo Nation, and Ute Mountain Ute Tribe.

Here is the question presented:

Whether the New Mexico Commissioner of Public Lands may claim federal reserved water rights with respect to lands Congress reserved from the federal public domain, and granted to the State of New Mexico subject to a strict, federally enforceable trust, to support public education and for other related purposes specified by Congress.

Oral Argument Transcript in Hawaii v. Office of Hawaiian Affairs

Matthew L.M. Fletcher

Available here.

Carcieri and Its Potential Impact on Michigan Indian Tribes

Matthew L.M. Fletcher4 Comments

I’m not going to add much to Bryan Newland’s reasonable commentary on the Carcieri decision, and my overall views will be in Indian Country Today on Thursday.

This post is about the potential impact of Carcieri on Michigan Indian tribes. I want to emphasize that this case may have significant potential impacts for Michigan tribes. The Grand Traverse Band in particular extensively cooperated with the Tribal Supreme Court Project substantively from the time this case first appeared in the First Circuit; one wouldn’t necessarily know that from the opinion and the pleadings, which are all under the banner of the National Congress of American Indians. NCAI owes GTB a great deal here for the risk it took.

GTB, as a tribe somewhat similarly situated to the Narragansett Tribe, had a great deal to lose by popping their heads up and taking a stand in this case. The Court could have come down with a much harsher bright-line rule. One should realize how this case could have — and may still — be a serious blow to the Grand Traverse Band and other tribes like them.

Here are my thoughts on the potential impact on Michigan Indian Tribes:

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Initial Reaction to Carcieri Opinion

bnewland5 Comments

I took a deep breath and drafted this initial review of the opinion. The deep breath was to avoid a knee-jerk response here like the one I had after the Plains Commerce Bank decision last year.

The Supreme Court handed down its opinion in the case of Carcieri v. Kempthorne (Salazar), which involed the Narragansett Indian Tribe’s petition to have land placed into trust by the Secretary of Interior. The Court ruled that the Secretary of Interior could not place land into trust for the Tribe under the Indian Reorganization Act, because the Tribe was not recognized at the time the IRA was passed in 1934 (the Narragansett Tribe was finally acknowledged in 1983, after a century-long effort).

The decision was 6-3 in favor of the Governor of Rhode Island, although Justice Stevens was the only justice to fully dissent from the opinion, and drafted an opinion in support of the Tribe.

The IRA states that the Secretary of Interior may place land into trust for tribes “now under Federal jurisdiction.” According to the Court, use of the word “now” means that this provision only applies to tribes under federal jurisdiction at the time the IRA was passed.

You can find the opinion and background materials here.

A couple of quick thoughts on this case:

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Carcieri v. Salazar Goes Against US and Tribes

Matthew L.M. Fletcher7 Comments

Here is the opinion.

Commentary on the Navajo Nation Oral Argument

Matthew L.M. Fletcher1 Comment

As could be predicted, the oral argument in United States v. Navajo Nation (transcript) did not go very well for the respondents. Adam Liptak noted that Justice Ginsburg showed unusual vigor in suggesting to Carter Phillips that her 2003 majority opinion in Navajo Nation I foreclosed any chance for a monetary award, implying that the first decision covered any possible relevant openings for the Nation.

And that’s how Acting SG Ed Kneedler opened, by arguing that the questions presented in Navajo I included all possible statutes that could generate an award-generating cause of action for the Nation. Before the Acting SG concluded his opening portion of the argument, Justice Ginsburg on page 18 was asking Mr. Kneedler the proper course of action once the Court rules in favor of the government. See Transcript page 18, lines 4-7. Kneedler suggested a reversal and a dismissal of the complaint below. No more remands, something perhaps the Court forgot to do before.

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U.S. v. Navajo Nation Oral Argument Transcript

Matthew L.M. Fletcher

Available here.

Supreme Court Denies Cert in Winslow Friday and Mercury Cases

Matthew L.M. Fletcher

Here is the order. The Friday listing is on page 7. And the mercury case (Utility Air Regulatory v. New Jersey) is on page 4.

NYTs Editorial Supporting Navajos

Matthew L.M. Fletcher

From the NYTs:

The federal government has a long history of cheating American Indians, and not all of this dirty dealing is in the distant past. On Monday, the Supreme Court hears arguments in a suit by the Navajo, who lost millions of dollars’ worth of coal royalties because the government helped a coal company underpay for their coal. A lower court ruled for the Navajo Nation. The Supreme Court should affirm that well-reasoned decision.

The Navajo’s huge reservation spreads across parts of Arizona, New Mexico and Utah. The United States holds the lands in trust and manages their large coal deposits. Peabody Coal had a lease to mine on that land. The terms provided that in 1984, the interior secretary could make a reasonable adjustment in the royalty rates paid to the tribe.

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SCOTUSBlog: Argument Preview in Hawaii v. Office of Hawaiian Affairs

Matthew L.M. Fletcher

From SCOTUSBlog:

An excerpt:

Central to the issues in this case are statutes passed in 1993 by both the Hawaii State Legislature and the U.S. Congress recognizing the 100th anniversary of the monarchy’s overthrow. On the state level, three related statutes recounted the story of the monarchy’s overthrow and annexation of Hawaii, acknowledged that neither Native Hawaiians or their government had consented to the cessation of land, declared the U.S.’s actions “illegal and immoral,” and resolved to support efforts by Native Hawaiians to vindicate their rights and to establish their own sovereign government. Congress subsequently issued an Apology Resolution that described the monarchy’s overthrow and apologized to Native Hawaiians. And in 1997, the Hawaii Legislature passed another statute clarifying the proper management of lands held in trust for the benefit of Native Hawaiians and embracing the facts laid out in the federal Apology Resolution.