Supreme Court – Page 179

Alex Skibine on Formalism and Judicial Supremacy in Federal Indian Common Law

August 26, 2008Matthew L.M. Fletcher

Alex Skibine has posted “Formalism and Judicial Supremacy in Federal Indian Common Law,” forthcoming in the American Indian Law Review. Here is the abstract:

In this article, Professor Skibine shows how in the last thirty years or so, the United States Supreme court has taken legal principles based on functionalism and transformed them into inflexible rules based on formalism. This has allowed the Court not only to rule against Indian tribal interests in 80% of its cases but also to achieve judicial supremacy in the field of Federal Indian law.

ACS Issue Brief on the NLRB — Holy Irony!!!!

August 19, 2008Matthew L.M. Fletcher

The American Constitution Society just released an issue brief called “Understanding How Employees’ Rights to Organize Under the National Labor Relations Act Have Been Limited: The Case of Brown University.” Anyone following Indian Law knows that not all employees have this problem!

Here it is: dannin-issue-brief

Just take the words “Brown University” and replace them with “San Manuel Indian Bingo and Casino” and you have a wildly different result. This issue brief, which is well-written, notes how the NLRB ignores precedent to reach pro-employer results and harms employee rights. Unfortunately, there is no mention of the San Manuel Indian Bingo and Casino decision (from the same year as the Brown University decision, 2004), which reversed 30 years of precedent, gave short shrift to tribal sovereignty, and utterly ignored the governmental purposes of tribal gaming.

I haven’t seen any issue briefs on Indian Law from the ACS, an organization I support. I suppose it’s not a major issue for the ACS, but I urge the ACS and its issue brief writers to consider Indian Law on occasion. Dean Getches wrote a decade ago that tribal interests fare worse than any class of litigant before the Supreme Court, worse than convicted criminals, and not much has changed to the benefit of tribal interests.

Here are a few things the ACS could write about:

The 75 percent loss rate of tribal interests before the SCT since 1986
The hostility of the Supreme Court toward tribal criminal and civil jurisdiction over non-Indians, which contributes directly to a serious crime and regulatory problem in Indian Country
The hostility of the Supreme Court toward tribal interests in disputes with states and state agencies (a federalism issue )
The incredible advances that tribes (and states and local governments) have made in using intergovernmental agreements to negotiate away troublesome jurisdictional quandries
The hostility of the federal government toward Indians and Indian tribes in the context of Indian gaming and individual Indian money accounts
The voting rights cases still being brought by the ACLU Voting Rights Project in Indian Country

There are many other issues. There’s a lot of good things going on in Indian Country, too.

Government’s Brief in Carcieri v. Kempthorne

August 19, 2008Matthew L.M. Fletcher

Here it is — us-brief

Lawrence v. US DOI Cert Petition — Indian Preference (Fire Fighter Benefits)

August 16, 2008Matthew L.M. Fletcher

Here is the cert petition in Lawrence v. United States DOI. Here is the Ninth Circuit’s opinion.

And here are the questions presented, from the cert petition:

1. Can the Department of Interior ignore the imperative of the Indian Preference Act (25 USC § 47.2) by “blindly” applying civil service regulations [5 USC § 831.906(b)], which effectively deprives Indian firefighters on Indian Reservations of the enhanced retirement benefits [5 USC § 8336(c)(1)] to which they may otherwise be entitled.

2. Whether the Secretary of Interior can, by failing to adopt any standards by which the BIA could identify Indian employees as firefighters, thereby exclude the majority of Indian civil service firefighters on Indian Reservations from timely filing for previous years credits toward their enhanced retirement benefits. [ Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984)]

3. Whether the trial, court erred in ruling that evidence of few BIA Indian firefighter employees applying for enhanced retirement benefits, when, in fact, the BIA employs a majority of Indian firefighters, did not satisfy a prima facie showing of disparate impact.

MichGO v. Kempthorne — Stay Issued

August 16, 2008Matthew L.M. Fletcher

From the AP:

WASHINGTON — A federal appeals court has issued a stay preventing a proposed tribal casino in Allegan County from moving forward.

The D.C. Circuit Court of Appeals issued the order Friday pending a potential review from the U.S. Supreme Court. Opponents of the casino have asked the Supreme Court to hear the case.

The Gun Lake tribe wants to build a $200 million casino in Allegan County’s Wayland Township. A group called Michigan Gambling Opposition has spent years trying to stop the casino from being built.

The appeals court sided with the tribe earlier this year, upholding a decision by the federal government to set aside 147 acres of land where the casino would be built near Grand Rapids.

ICT on MichGO’s Ongoing Legal Wrangling

August 13, 2008Matthew L.M. Fletcher1 Comment

From ICT:

WAYLAND COUNTY, Mich. – In an effort to take advantage of every possible opportunity to delay the Gun Lake Tribe’s casino, the anti-Indian casino group Michigan Gambling Opposition – MichGO – has asked a court to stop all further action while the group files a petition for a writ of certiorari with the U.S. Supreme Court.

MichGO’s latest tactic followed a July 25 ruling by the U.S. District Court of Appeals for the District of Columbia denying the group’s request for a full panel, or en banc, rehearing of the court’s 2 – 1 decision in April upholding a district court decision to allow the Interior Department to take 147 acres of land into trust for the tribe’s proposed $200 million casino.

Continue reading →

Shortchanging Indian Country

August 12, 2008Matthew L.M. Fletcher1 Comment

Recently, the district court in Cobell v. Kempthorne awarded the Indian plaintiffs about $455.6 million. This is down from the $7 billion on the table a while back.

And now, the Supreme Court has decided to defer a question on the mere interest of an award to the Exxon Valdez plaintiffs, including Alaskan Native villages, of about $488 million. And that is just on the compensatory damages award of over $500 million, far less than the billions of punitive damages awarded in the original verdict.

My guess is that the Court will keep driving these numbers down if they get a chance to the future.

Kate Fort on The New Laches

August 11, 2008Matthew L.M. Fletcher

Kate Fort of MSU College of Law has posted “The New Laches” on SSRN. This is the first comprehensive and historical study of the application of laches doctrine to sovereigns, federal, state, and tribal. Here is the abstract:

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the “new laches.” This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.

Kemp v. Osage Nation Cert Opposition Brief

August 9, 2008Matthew L.M. Fletcher

This case, which I suspect has a fairly good chance of being granted, involves the Osage Nation’s successful suit against the Oklahoma Tax Commission to declare its Indian Country boundaries. The cert petition post is here, which includes the lower court decision and the relevant briefs. Here is the opposition brief.

osage-cert-opp-brief