Supreme Court

MichGO Decision — Implications for Carcieri v. Kempthorne?

Matthew L.M. Fletcher

Who knows, except the people at the Supreme Court?

One possibility is that the Supreme Court denied cert in MichGO because the Court is going to uphold the Secretary of Interior’s authority to take land into trust for tribes not federally recognized in 1934 (tribes like the Gun Lake Band and the Narragansett Tribe), the key issue in Carcieri. If the Court was to reject the Secretary’s authority in Carcieri, then there would be reason to grant cert in MichGO to correct the lower court’s holding. They might choose to do this through a tool called GVR — Grant, Vacate, and Remand. But if the Court was to affirm the Secretary’s holding, then the lower court decision in MichGO is correct even after Carcieri, and so there’s no reason to review the decision.

However, there might be a problem with this theory; namely (if I am correct), MichGO never once argued that Gun Lake Band is ineligible under Section 5 because it wasn’t recognized in 1934. They did raise it in the cert petition, but one suspects that it’s too late then. MichGO could have raised the question from the outset, because the Narragansett litigation had been ongoing for some time. So maybe that’s why the Court denied cert in MichGO. And, if so, the cert denial offers no clues as to the possible outcome in Carcieri.

Finally, one great bit of news — since the Court denied cert in MichGO, the nondelegation doctrine claim that MichGO brought to the Court once again goes by the wayside (the Court had previously refused to accept this question in Carcieri as well, and in several other cases before that).

MichGO Cert Petition Denied — UPDATE

Matthew L.M. Fletcher3 Comments

The SCT list of orders is here (the line is near the bottom of page 10).

The Gun Lake Band’s press release is here: pr-cert-denied-12109

And a timeline of the case is here: glt-casino-timeline-12109

Thanks to Gale and Zeke for these materials.

WSJ: Obama and the Federal Judiciary

Matthew L.M. Fletcher

From WSJ (via How Appealing):

U.S. President-elect Barack Obama is expected to have a speedy and significant impact on a number of federal courts of appeal, with the potential to lessen the conservative influence that several of these courts now wield.

Given significant vacancies in some the nation’s 13 federal appellate courts, Mr. Obama’s appointments may shape the ways laws are interpreted across the country. “He really has an enormous opportunity,” said Carl Tobias, a law professor at the University of Richmond in Virginia and expert on the federal judiciary. “At least initially, I don’t see him having much trouble getting his seats filled.”

Continue reading →

Dodging a Bullet — Roberts v. Hagener

Matthew L.M. Fletcher

The Supreme Court denied cert on January 12, 2009 in a little-known case called Roberts v. Hagener, out of the Ninth Circuit. The CA9 opinion is here and the Ninth Circuit briefs are here. Here is the cert petition (roberts-v-hegener-cert-petn), and an amicus brief from the Mountain States Legal Foundation supporting the petition (pacific-legal-foundation-amicus-brief).

This was a scary case, and only because the Supreme Court seems to be taking a greater interest in Indian Country the last few years. It was an attempt to convince the Court that the Fourteenth Amendment’s strict scrutiny test should apply to state game laws that recognize American Indian treaty rights. Of course, it is settled law that this is not the case, dating at least back to the 1970s treaty rights cases, and to Morton v. Mancari. But with the Supreme Court, nothing is really settled.

Anyway, dodged a bullet.

Neal Katyal to Serve as Deputy Solicitor General

Matthew L.M. Fletcher

From SCOTUSBlog:

The Blog of Legal Times reported here that Georgetown Law School Professor Neal Katyal was the leading candidate to serve as Principal Deputy Solicitor General.  That choice has now been finalized, and he will begin work in the Office on January 20.

Ed Kneedler Named Acting Solicitor General

Matthew L.M. Fletcher

Maybe it’s only for a few weeks, but congrats to Ed Kneedler, who has probably argued more Indian law cases before the Supreme Court than anyone in history.

Here’s the report (from BLT):

And from the White House comes word that veteran career Deputy SG Edwin Kneedler, with more than 100 oral arguments under his belt, will become acting solicitor general until a successor for Garre is confirmed.  President-elect Barack Obama has appointed Harvard Law School Dean Elena Kagan to the post, but it is uncertain how long the confirmation process will take. For the near future, Garre will return to the law school where he received his J.D., George Washington University Law School. Garre will teach a course in constitutional law and the Supreme Court for the spring semester, says Gregory Maggs, senior associate dean for academic affairs.

Marceau v. Blackfeet Housing Authority Cert Petition

Matthew L.M. Fletcher3 Comments

marceau-v-blackfeet-housing-authority-cert-petition

The SCT Project’s materials on this case are here.

Commentary on Harrah’s v. NGV Gaming Cert Petition

Matthew L.M. Fletcher1 Comment

Here is the reply brief from Harrah’s, and so the certiorari briefing is concluded (the petition is here, and the opposition is here).

I was a little surprised that SCOTUSblog lists this case as a petition to watch. I don’t see any of the indicators that this would be the kind of case to make the discuss list (including either party employing a member of the Supreme Court “bar” suggested by Prof. Lazarus), except for the very superficial circuit split alleged by the petitioners. Maybe they know something I don’t. [I suppose that SCOTUSblog might think this case is similar to Carcieri and MichGO, but I doubt it.]

I say the circuit split is superficial, but in reality it is illusory. The claimed split is between the Ninth and Second Circuits over the definition of “Indian lands.” The CA2 looked at “Indian lands” as used in the Indian Gaming Regulatory Act (25 U.S.C. 2711), and the CA9 looked at “Indian lands” as used in Section 81 of Title 25. The CA2 said that IGRA’s “Indian lands” definition includes both lands already held in trust and lands that will go into trust. The CA9 says that Section 81’s “Indian lands” definition includes only lands already held in trust. Both courts seem to have spent some time reading the dictionary on these cases — 1 U.S.C. 1 et seq. Looks like a split, right?

NO.

Hopefully, the SCT and their clerks will realize that no split exists at all. There are two reasons. First, the purposes of each statute distinguish them, even though they use the same words. Second, the operation and implementation of the different statutes prevent them from conflicting. I really don’t think the Dictionary Act would trump either of these two arguments, or else someone better go back and reargue D.C. v. Heller.

OK, the first point. Section 2711 is about management contracts that tribes might sign to manage a gaming facility. Tribes will and do sign these contracts long before any land is taken into trust, and even before a tribe owns a single acre. So it is the National Indian Gaming Commission’s responsibility to review these contracts could kick in before any land is taken into trust, making the CA2’s outcome reasonable. Section 81, on the other hand, is about tribes collateralizing lands held in trust for the tribes by the Secretary of Interior. There’s no reason to review a contract that potentially encumbers tribal trust land unless that land is already in trust, making the CA9’s decision reasonable.

Which leads to the second point, closely related — the Secretary cannot take land into trust without first determining that there are no encumbrances on the land (25 U.S.C. 465). So under Section 81, the Secretary doesn’t need to review a contract that might encumber trust land. In other words, the Secretary will never review a contract that might encumber “Indian lands” under Section 81 unless the land is already in trust. So, the CA9’s decision is the only decision possible. Conversely, IGRA expressly allows for the NIGC to review a contract regarding lands that will go into trust, often because the contract itself will provide the tribe funds to buy lands and ask the Secretary to take the land into trust.

And so, no circuit split.

I hope the Court isn’t confused by this one.

More Commentary on Carcieri and MichGO

Matthew L.M. Fletcher2 Comments

It might be useful to recap the various factors that might affect the Supreme Court’s consideration of Carcieri v. Kempthorne and MichGO v. Kempthorne. I’ve been quoted here (ICT) and here (Indianz) — correctly, no problem there — but one thing I wonder might affect MichGO.

What I’ve been saying for a few days now is that the outcome in Carcieri might affect whether or not the Court decides to hear MichGO on the merits, a grant, or whether it decides to remand MichGO in light of Carcieri, a GVR. One thing I had not considered until now is that MichGO has not made some key arguments that were available to it by virtue of the Carcieri case. Carcieri is about whether Section 5 of the Indian Reorganization Act can apply to a tribe not federally recognized by the federal government in 1934. Until its cert petition (and I have not seen the complaint), MichGO never made that argument. The MichGO cert petition’s second question presented is one that was available to them (the Carcieri litigation goes back way before the MichGO litigation) but one that MichGO apparently never made.

So if the Court GVR’s MichGO after a Carcieri reversal on the Section 5 question, it will be allowing MichGO to bootstrap itself onto an argument that it had never made. Frankly, if my facts are right, MichGO has waived its 1934 argument, and should not be the beneficiary of a remand to the D.C. Circuit.

Even if the Court GVR’s the MichGO case, the Gun Lake Band probably will still be able to show that they are eligible under Section 5, depending on how the Court’s majority opinion in Carcieri reads. MichGO, an organization created to delay gaming, likely for the benefit of other gaming and business entities, will continue to be a big winner merely by delaying the opening of yet another casino. And Gun Lake will have been the victim of really, really bad timing.

Coeur Alaska v. Southeast Alaska Conservation — SCT Argument Today

Matthew L.M. Fletcher

Here is a brief summary on this Clean Water Act case from SCOTUSblog:

Following the release of orders, the Court will hear argument in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council, et al. and Alaska v. Southeast Alaska Conservation Council, et al. (07-984) (07-990), involving the permit process for discharging mining pollutants under the Clean Water Act. Ted Olson of Washington, D.C., will argue for the petitioners, Thomas Waldo of Juneau, Alaska, will argue for the respondents, and Solicitor General Greg Garre will argue for the federal respondents in support of the petitioner.

Alaskan Natives are participating in this case as amici — and their brief is here.