Supreme Court

Supreme Court Declines to Lift Gun Lake Stay

Matthew L.M. Fletcher

From TV:

ALLEGAN COUNTY, Mich. (NEWSCHANNEL 3) – The Chief Justice of the Supreme Court has dealt a blow to the West Michigan tribe trying to build a casino near Wayland.

Justice John Roberts has denied the tribe’s request to vacate a stay issued by a Washington DC circuit court. That court said that the tribe would have to wait until after the Supreme Court hears the latest challenge from the anti-gambling group MichGO.

Many speculate that Roberts’ decision is an indication that the court will hear that challenge, but that may not happen until sometime in 2009. So, for now, the Gun Lake Tribe has to wait and cannot start construction on the casino in Allegan County.

“Many speculate?” Since there has not even been a cert petition filed yet, I don’t see any reason to speculate on anything yet.

Rhode Island Divided over Petitioner Argument Time

Matthew L.M. Fletcher

from ProJo (H/T SCOTUSBlog):

The fate of 31 acres in Charlestown owned by the Narragansett Indian tribe will be argued before the U.S. Supreme Court in November, but first a nasty local dispute must be resolved: Who should represent Rhode Island’s interests before the nation’s highest court?

At play is whether the privilege should go to the attorney general’s office, a high-powered lawyer hired by Governor Carcieri, Charlestown’s assistant solicitor on Indian affairs or a combination therein?

The Supreme Court is scheduled to hear arguments Nov. 3 on the state’s challenge of a federal appeals court ruling that the U.S. Department of Interior can hold the land in trust for the Narragansetts.

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2008 Term Preview: The Long Conference — September 29, 2008

Matthew L.M. Fletcher4 Comments

On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.

1. Hawaii v. Office of Indian Affairs (07-1372)

This petition has a fairly good chance to be granted.

The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).

2. Ho-Chunk Nation v. Wisconsin (07-1402)

I don’t think this one has much chance to be granted.

It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)

3. Kemp v. Osage Nation (07-1484)

This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.

Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.

4. Kickapoo v. Texas (07-1109)

This one has a slight chance for a grant.

I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.

Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.

5. Klamath Tribes v. PacificCorp (07-1492)

This one has no chance.

First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦

6. Matheson v. Gregoire (08-23)

Again, no chance.

First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.

7. South Fork Band v. United States (08-100, 08-231)

No chance.

This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.

8. United States v. Navajo Nation (07-1410)

Very, very good chance for a grant.

First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).

Either way you have a grant.

Pelt v. Utah — Navajo Trust Fund Litigation

Matthew L.M. Fletcher

The Tenth Circuit held that prior decisions involving the Navajo Trust Fund held by the State of Utah did not foreclose the current claim for an accounting of the fund by beneficiaries.

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Taylor v. Sturgell

“American Indian Education” Profiled by ICT

Matthew L.M. Fletcher

From ICT:

TEMPE, Ariz. – Matthew L.M. Fletcher is an associate professor at Michigan State University College of Law and he is the director of the Indigenous Law and Policy Center. He recently published, ”American Indian Education: Counternarrative in Racism, Struggle, and the Law” through Routledge. He graduated from University of Michigan Law School.

Indian Country Today: Why did you choose to pursue a career in law?

Matthew L.M. Fletcher: I just want to be able to contribute something to the community and I also was thinking in different ways, even before I started college, what I could do. I had talks with people who are from my community and elders from Michigan who talked a lot about how in the ’70s and ’80s, the big treaty fishing cases were going on and people were really happy with the outcomes with those cases but they were sad to see all the litigation conducted and organized and control by people that were not from the community.

ICT: Do you feel like you have helped your tribe?

Fletcher: I feel like I’ve contributed something and I continue to contribute something. My whole life will be a process of contributing. I think it has been real good.

ICT: What is the future of Indian law?

Fletcher: It’s interesting. The ’70s and ’80s were about litigating treaty rights. The key for Indian lawyers is not so much about going to court but it’s about developing governmental structures within the tribe which is what lawyers do. It’s actually a folly to go to federal courts now. All you have to do is ask anyone who does any kind of litigation in federal court if you’re representing a tribe or tribal interest you can’t expect to win. It’s going to be that way for a long time. The thing that you see is institution building within Indian country. There are some incredible things going on that are not getting a lot of attention. There is a lot of creativity with people bringing back indigenous culture and tradition.

ICT: How would you define sovereignty?

Fletcher: My view of sovereignty is that it is the right to make your own mistakes and to decide things for yourselves. That is really what it is about. Tribes have the wherewithal, the ability and the legal authority to pursue different avenues of governance. They are going to do something where everyone shakes their heads, and then they are going to do other things where people are going to just say, ”Wow.” There is an incredible amount of diversity and creativity going on right now.

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Gun Lake Band Moves to Vacate Stay

Matthew L.M. Fletcher

The Gun Lake Band has filed an application to Chief Justice Roberts to vacate the stay issued by the D.C. Circuit preventing the Secretary from taking its Shelbyville, Michigan parcel into trust for gaming purposes. Here is the docket sheet so far.

Carcieri v. Kempthorne: Amicus Briefs Supporting the Respondent

Matthew L.M. Fletcher

They’re here, courtesy of the Supreme Court Project:

In support of Respondents:

Amicus Brief of Narragansett Indian Tribe

Amicus Brief of Law Professors

Amicus Brief of NCAI

Amicus Brief of Historians

Amicus Brief of Standing Rock Sioux, et al.

Greene v. Commissioner — Minn. Supreme Court Decision on Political Status Test

Matthew L.M. Fletcher

In an interesting decision, Greene v. Commissioner of the Minnesota Dept. of Social Services (opinion), and a 4-3 split, the Minnesota Supreme Court upheld a state law under Morton v. Mancari‘s political status classification. Justice Alan Page dissented, appearing to be shocked that Indians would be treated differently (both positively and negatively) under the political status test.

Here is the court’s syllabus:

1.     Minnesota Statutes § 256J.645, subd. 4 (2006), requires that a tribal member residing in the service area of a federally recognized tribe, which provides employment services under an agreement with the State of Minnesota, receive employment services through the tribe and is subject to sanction for refusing to participate in those services.  Under Minn. Stat. § 256J.57, subd. 1 (2006), a tribal member has the right to show good cause for failing to participate in the employment services through the tribe.
2.     Because Minn. Stat. § 256J.645, subd. 4, neither burdens a fundamental right nor involves a suspect classification, rational basis review is the appropriate level of scrutiny to apply to an equal protection challenge under the United States and Minnesota Constitutions.
3.     Minnesota Statutes § 256J.645, subd. 4, satisfies rational basis review under the United States and Minnesota Constitutions.

Ronald Krotoszynski on Employment Division v. Smith II

Matthew L.M. Fletcher

Ronald Krotoszynski has published “If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith” in the Northwestern University Law Review. Here is an excerpt from the introduction:

Thus, the standard approach is to link the importance of religious autonomy with a strict form of judicial scrutiny for governmental actions that have the incidental effect of denying religionists, including but not limited to members of minority religions, the ability to engage in religiously motivated conduct. Viewed from this vantage point, Smith is highly objectionable because it makes successful free exercise challenges to general laws virtually impossible to win. Even if the federal courts have not applied strict scrutiny in an exacting fashion, lowering the standard of review to mere rationality virtually ensures that most free exercise claims will fail. Thus, the Justices who support strict scrutiny of neutral laws of general applicability that burden religiously motivated practices, such as Justice Brennan and Justice O’Connor, object strenuously to Smith’s change in the governing standard of review from earlier cases, such as Sherbert and Wisconsin v. Yoder, the latter a case that upheld a free exercise claim brought by Amish parents who wished to remove their children from the public schools after the eighth grade. If the Free Exercise Clause exists to facilitate absolute religious autonomy, the Sherbert approach advocated by Justices Brennan and O’Connor would better honor free exercise values. At the very least, it certainly seems reasonable to frame the Free Exercise Clause in terms of religious autonomy.

Rather than as advancing religious liberty or autonomy values, one could alternatively conceive of the Free Exercise Clause as primarily promoting religious equality. If equality among sects is the primary purpose of the Free Exercise Clause, the Smith test (or something like it) might offer a better reading of the Clause than Sherbert and Yoder.

Narragansett Tribe’s Amicus Brief in Carcieri v. Kempthorne

Matthew L.M. Fletcher

Here is the Narragansett brief in Carcieri. As we get them, we’ll post them.

Narragansett Amicus Brief