Supreme Court

Obama Adminstration Opposes Office of Native Hawaiian Affairs in SCT Case

Matthew L.M. Fletcher

From the Hawaiian Reporter (via How Appealing):

The state of Hawaii and state Office of Hawaiian Affairs have contracted two of the nation’s top legal “heavy hitters” to back their respective side in a case being presented to the U.S. Supreme Court later this month over who has the right to sell the state’s “ceded lands” or crown lands left by Hawaiian royalty to the state.State attorney general Mark Bennett, Hawaii’s top state law enforcement officer, will present oral arguments himself on the state’s behalf in Hawaii v. Office of Hawaiian Affairs, No. 07-1372, but the state’s written brief is being prepared by Former Solicitor General of the United States, Seth Waxman, who is considered to be the “lawyer’s lawyer” on the most important cases before the Court.

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How Appealing Profiles “Factbound and Splitless”

Matthew L.M. Fletcher

From How Appealing:

“MSU scholar says Indians face Supreme Court bias”: The Michigan Messenger yesterday posted online this item about a paper titled “Factbound and Splitless: Certiorari and Indian Law” by law professor Matthew L.M. Fletcher.

“Factbound and Splitless” Profiled on SCOTUSBlog

Matthew L.M. Fletcher

From SCOTUSBlog:

Matthew L.M. Fletcher (Michigan State University College of Law) has posted “Factbound and Splitless: Certiorari and Indian Law” on SSRN, see here.  This article engages in an empirical study of 162 certiorari petitions that were filed in Indian Law cases between 1986 and 1994.  To my knowledge, this is the first attempt to systematically analyze certiorari petitions in tribal cases.  Professor Fletcher concludes that petitions brought by tribes during the period studied were often denied by the Court as factbound and splitless, while state and local governments received much more favorable treatment at the certiorari stage in tribal cases.  Although I must confess that I do not agree with some of the conclusions reached in this paper, Fletcher’s article is thought-provoking and interesting. [David Stras]

Georgetown Law Journal Article on IGRA and Sovereign Immunity

Matthew L.M. Fletcher

Courtney J.A. DaCosta has published “When ‘Turnabout’ is Not ‘Fair Play’: Tribal Immunity under the Indian Gaming Regulatory Act” in the Georgetown Law Journal. An excerpt:

This Note argues that federal courts have interpreted tribal immunity broadly under IGRA; that this approach, while doctrinally sound, produces several normatively undesirable consequences; and that Congress should stem these consequences by amending IGRA to restore the statute’s tribal-state power balance through abrogation of tribal immunity in certain cases.

Cook v. Avi Casino Enters. — Trouble?

Matthew L.M. Fletcher5 Comments

The Cook v. Avi Casino Enterprises cert petition has a reasonable chance of being granted. There are a bunch of factors that support the petitioners, and a bunch that don’t.

The case involves dram shop actions against tribal casinos. I’d bet the wide majority of tribal casinos waive sovereign immunity in tribal court for these kinds of actions, but the Cook case and others usually involve a claim brought in state courts, where tribes have not waived their immunity. Interestingly, other than one Oklahoma case, all of the state (and now federal) courts have found that tribal sovereign immunity precludes these actions. Our discussion of the Oklahoma case, and at least three other state cases is here.

So there is a split of authority, but it’s not between federal circuits, which decreases the chance for review somewhat. And there is a Supreme Court case, Rice v. Rehner, a preemption case that held that there is little or no tradition of tribal sovereignty in the context of alchoholic beverage transactions. The petitioners are asking the Court to expand that holding to strike down sovereign immunity in state courts.

On the other hand, the petitioners are asking for a second chance at the pot, likely because they refused to bring a claim in tribal court. In short, these petitioners, who came onto the reservation on their own accord and conducted business with an Indian tribe, want the right to make a state court claim, and want that right to trump the available tribal court venue. Moreover, the Supreme Court might not be terribly interested in another tribal sovereign immunity case, especially since the state court cases are all decided based on state law, interestingly enough. Yes, it’s true, state courts also recognize tribal sovereign immunity.

This is an important question for gaming tribes, many of which have priced and acquired insurance to cover dram shop actions on the basis that these cases would be decided in tribal courts.

Finally, there is a decent argument that the tribal-state gaming compact relationship would be undermined by a decision eliminating or reducing tribal immunity in this context. Increasing the cost for tribes of doing business hurts state revenue sharing. One hopes the states recognize that.

Cook v. Avi Casino Enterprises Cert Petition

Matthew L.M. Fletcher1 Comment

Here is the petition — cook-v-avi-casino-enterprises-cert-petition

Here are the lower court materials (previously posted).

Florida House of Representatives Opposition to Cert Petition

Matthew L.M. Fletcher

Here is the respondent’s response to the cert petition filed in Seminole Tribe v. Florida House of Reps.

SCOTUSBlog Predictions on a Possible SCT Nominee in Summer 2009

Matthew L.M. Fletcher

Jennifer Granholm, our governor, is listed as a dark horse candidate. Our commentary on the other candidates (Kagan, Wood, and Sotomayor) is here. We haven’t yet discussed Jennifer Granholm as a possible Justice.

From SCOTUSBlog:

Before the election, I wrote two posts (here and here) on likely Democratic nominees to the Supreme Court.  It seems an appropriate time for an update.  For example, despite my earlier predictions, Elliot Spitzer’s odds now seem lower, and President Obama is unlikely to appoint himself.

Equally important, we can learn something from the President’s initial appointments to other jobs in the government.  In my opinion, they seem pragmatic and focused on objective qualifications (including academic appointments) and tend less than did those of Clinton and Bush 43 towards friends of the President.  The appointments to date have also involved few totally out of the box and unexpected choices.  The appointments have been diverse, but the choices don’t seem race and gender driven.

We also have the benefit of the President’s specific appointment of Elena Kagan to be SG, which elevates her prospects considerably.

In my opinion, if there is an appointment this summer — which principally means that some otherwise serious candidates will not yet have had the time to be appointed to a court of appeals and develop experience there — there are three reasonably clear front runners, and one dark horse candidate.  All are women, for the simple reason that there is only one woman on the Court now and I cannot imagine that the President will conclude that he cannot find a highly qualified female nominee.

The three obvious candidates are Elena Kagan (SG), Sonia Sotomajor (CA2), and Diane Wood (CA7).  The sleeper candidate is Michigan Governor Jennifer Granholm.

Law Professor Brief in United States v. Navajo Nation

Matthew L.M. Fletcher

Here — law-prof-amicus-brief-navajo-nation

And several former Interior Secretaries filed a brief supporting the Navajo Nation — former-interior-secretaries-brief-navajo-nation

Other briefs are here.

Christian McMillen Talk

Matthew L.M. Fletcher

From Legal History Blog:

On Friday, January 23, Professor Christian McMillen, Department of History, University of Virginia, will be discussing two papers. First, he will talk about the Historians’ Brief in Carcieri v Kempthorne, an Indian law case from the Supreme Court’s current term which considers whether the Narrangansett Tribe may receive benefits under the Indian Reorganization Act of 1934, if the Tribe was not federally recognized on the date of enactment, and whether the Rhode Island Indian Claims Settlement Act foreclosed the Tribe’s right to exercise sovereignty over land in the state. Next, McMillen will discuss “Proof, Evidence and History in Indigenous Land Claims,” a paper blending history with the law in the early years of Indian claims.

Professor McMillen is Assistant Professor of Native American Studies and the U.S. West in the Corcoran Department of History at U.Va. He received his BA in history from Earlham College, his MA in history from the University of Montana, and his PhD in history from Yale University. McMillen’s book, Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (Yale University Press, 2007) won the 2008 William Nelson Cromwell Book Award, the 2008 John Phillip Reid Book Award, and the 2008 Erminie Wheeler-Voegelin Prize, and garnered a nomination for the Bancroft Prize. The book examines a watershed Indian property rights case that continues to impact the outcome of indigenous land claim cases throughout the world.
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