This was filed May 28. The docket number is 07-1492. Our previous post is here.
Supreme Court
Kickapoo v Texas — Texas Asked to Respond to Cert Petition
Mildly interesting development in the Kickapoo case regarding the CA5’s decision to strike down the so-called Class III procedures (aka the “Seminole” fix). Kickapoo filed the cert petition, a tribal amicus brief supported the petition, but then Texas declined to respond (which is a respondent’s prerogative, especially in a case where there does not appear to be a clean circuit split). The US, the defendant in the original case, filed a brief urging the SCT to decline the case, although the brief went into detail into just how wrong the government thought the CA5 decision was.
Now the Court has asked for Texas to respond. In my limited experience with the Court’s internal dynamics, the Court might do this as a means of delaying a decision on a cert petition, but for what, in this case, I don’t know.
Commentary on the MichGO En Banc and Cert Petitions
MichGo’s attorney asserts a plan to file a cert petition (see below the fold for the news article), and even boasts that he has three votes for cert already — Scalia and Thomas because they dissented in the South Dakota case in 1996, and Roberts because he represented a party making a nondelegation claim to 25 U.S.C. sec. 465 in 1999/2000.
This is spurious, given very recent events.
The Department of Interior just issued nearly-final IGRA Section 20 [25 U.S.C. 2719] regulations. These were the regulations I was talking about in my ICT editorial (not knowing they were about to be finalized). The very existence of these regulations severely blunts Judge Brown’s dissent in the D.C. Circuit case. Here, the Secretary is finally agreeing to formalize restrictions on his discretion contained in section 5 of the IRA [25 U.S.C. 465] in the context of Section 20 trust acquisitions.
One could make a plausible claim that, to the extent the SCT would be persuaded by a solitary dissent in a very minor case (nationally), it is now all but a dead letter.
What the D.C. Circuit should do is amend its decision to reflect the existence of the new regs, adding another nail to the coffin of the Section 5 nondelegation argument.
Finally, as MichGO’s attorney should know, one solitary dissent does not a circuit split make.
Tongue River Dispute — Montana v. Wyoming Orig.
This case arises out of a dispute between the two states over the Tongue River, which serves as a source of water for the Northern Cheyenne: “The Northern Cheyenne, whose primary water source is the Tongue River, lent their support to Montana in a move to protect their own claims. The compact specifically says that nothing in the document ‘shall be so construed or interpreted as to affect adversely any rights to the use of the waters of the Yellowstone River and its tributaries owned by or for Indians, Indian tribes and their reservations.'” (from the Billings Gazette).
Here is the government’s brief favoring Montana’s position.
Other briefs will be posted as they come on line.
United States v. Navajo Nation Cert Petition
The United States petitioned for cert in the ongoing Navajo Nation case over the Peabody Coal debacle. The Supreme Court held in 2003 that the Indian Mineral Leasing Act did not create a duty, but the Federal Circuit on remand resurrected the claim. Once again, the claim may give rise to $600 million in damages to the United States.
The lower court materials (briefs and opinions) are here.
Ho-Chunk Nation v. Wisconsin Cert Petition
Ho-Chunk Nation has filed a cert petition in its dispute over revenue sharing with the State of Wisconsin.
Here is the petition — hcn-cert-petition
Here is the docket site — No. 07-1402.
Here are the rest of the materials — CA7 opinion and some briefs — rest of the materials.
Kickapoo v. Texas on Petitions to Watch List
SCOTUSBlog isn’t taking any chances with Indian law now. 🙂
The Kickapoo v. Texas petition is on its watch list for the May 29, 2008 conference (here).
Docket: 07-1109
Case name: Kickapoo Traditional Tribe of Texas v. Texas, et al.
Issue: Whether, following Seminole Tribe v. Florida (1996), the Secretary of the Interior may establish procedures for Indian gaming if a state declines to enter a compact with the Tribe and invokes immunity from suit under the 11th Amendment.
- Opinion below (5th Circuit)
- Petition for certiorari
- Brief in opposition (Federal respondent)
- Petitioner’s reply
- Amicus brief of Jena Band of Choctaw Indians, et al. (in support of the petitioner)
Jacob Levy on Constitutions without Social Contracts
Jacob Levy has posted “Not so Novus an Ordo: Constitutions without Social Contracts,” forthcoming in Political Theory, on SSRN (H/t Legal Theory Blog). It has an interesting discussion of U.S. v. Lara. Here is the abstract:
Social contract theory imagines political societies as resting on a fundamental agreement, adopted at a discrete moment in hypothetical time, that both bound individual persons together into a single polity and set fundamental rules regarding that polity‘s structure and powers. Written constitutions, adopted at real moments in historical time, dictating governmental structures, bounding governmental powers, and entrenching individual rights, look temptingly like social contracts reified.
I argue in this article, however, that something essential is lost in the casual slippage between social contract theory and the practice of constitutionalism. Enacted constitutions do not come into being against the background of a state of nature of isolated individuals; and by this I do not mean to invoke the too-familiar critique of the supposedly decontextualized liberal person, but rather to critique the aspiration to decontextualize the legal and political order. Constitutions are enacted in ongoing societies (whether newly politically sovereign or otherwise) with pre-existing laws and legal systems, political organizations, cultural and linguistic and religious divisions, and norms and mores. Moreover, the practice of constitutionalism is usually, at least in part, a practice of reconciling those legacies to a new political order, of making use of those legacies to build loyalties to or counterbalances against the state (or both). Most constitutions cannot be well-understood by retrospectively characterizing them as the kind of complete and radical break with the past envisioned by social contract theory.
ICT Editorial on Fee to Trust Statute
From ICT:
The federal government’s recent actions involving its authority to make decisions on acquiring land in trust for tribal gaming purposes may inadvertently threaten the authority and duty of the secretary of the Interior Department to take land into trust for Indian tribes.
On April 29, the D.C. Circuit decided an innocuous case involving the secretary of Interior’s decision to take land into trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (also known as the Gun Lake Band). It was the third such opinion in recent years involving Michigan Potawatomi Indian tribes, each brought by well-funded citizens groups opposing Indian gaming. The suits were mere harassment suits, intended to delay rather than prevent the opening of the Potawatomi gaming operations. Each of the suits brought similar claims.
Of import, one claim was that Section 5 of the Indian Reorganization Act, the statute that authorizes the secretary to take land into trust for Indian tribes, was an unconstitutional delegation of congressional authority. The first two D.C. Circuit panel decisions (2006 and 2007), involving the Pokagon Band of Potawatomi Indians and the Nottawaseppi Huron Band of Potawatomi Indians, rejected the constitutional challenge to Section 5 without much discussion or dissent. In fact, since 1995, at least three other federal appellate circuits have rejected the same kind of challenge to the statute, so this is unsurprising.
Kannan on the Constitutionality of the 1871 Act re: Treaty-Making with Indian Tribes
Phillip M. Kannan has published “Reinstating Treaty-Making with Native American Tribes” in the William and Mary Bill of Rights Journal. An excerpt:
This Article proceeds as follows. The legal history of treaties and treaty-making with Indian tribes and the significance of these treaties to United States law are explored in Part I. The dissatisfaction of the House of Representatives with the practice of Indian policy being established by the President with the advice and consent of *813 the Senate is outlined in Part II. Part III then recounts major legislation that followed the enactment of section 71 and the harm these laws caused Indian tribes. In Part III, I also analyze the mischaracterizations of that law by the Supreme Court and the harm this has caused. Building on this background, Part IV develops the argument that section 71 violates the express provisions of the Constitution and the political theory on which it was based; Part V analyzes applicable Supreme Court precedent and concludes that section 71 violates the principles established by these cases; and Part VI argues that it is inconsistent with a theory developed by Justice Kennedy, namely, the guarantee of political liberty provided to each citizen by the federal structure of the Constitution. Part VII then explores the constitutional consequences that would follow from upholding section 71. I conclude with some suggestions of how section 71 could be repealed or overturned.
Turtle Talk 
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