The petition is here. This case concerns the validity of25 CFR Part 291, the procedures established by the Secretary of the Interior to act as a “Seminole fix.”
There is no serious chance the Court will grant cert in this case, unless the United States also files a petition. Even then, this is a likely case of first impression, a death knell for cert petitions.
Really, I should get out of the certiorari prediction business….
From Indian Country Today:
The Internet is amazing. I came across the audio (along with a written transcript) of the 1984 oral arguments in the case U.S. v. Dann. By listening to the audio recording, we are able to experience the arguments made 24 years ago before the Rehnquist Supreme Court regarding the issue of Western Shoshone land rights.
Robert McConnell, Assistant U.S. Attorney General, argued on behalf of the United States, which was suing Mary and Carrie Dann for allegedly trespassing on ”public lands” (Western Shoshone lands) by grazing their livestock without a permit from the Bureau of Land Management. McConnell opened by saying: ”Mr. Chief Justice, and may it please the Court, this case comes before this Court on writ of certiorari to the Ninth Circuit Court of Appeals. It concerns the finality effect of Section 22(a) of the Indian Claims Commission Act.”
Bryan Wildenthal has posted “How a Ninth Circuit Panel Opinion Overruled a Century of Supreme Court Indian Law Jurisprudence — And Has So Far Gotten Away With It” on SSRN. This paper is part of the Michigan State Law Review’s symposium on federal labor law and tribal sovereignty.
Here’s the abstract:
The two questions presented in Carcieri v. Kempthorne have significant import for much of Indian Country. But it might be a mistake to conclude the first question (whether the Secretary can take land into trust for tribes that were not federally recognized in 1934, when the Indian Reorganization Act was passed) is an Indian law question. The outcome of that question may turn on the Supreme Court’s decision in National Cable & Communications Assn v. Brand X Internet Services, 545 U.S. 967 (2005). Huh?!?!?
Consider the United States’ brief in opposition to the petition for cert:
As this Court held in [Brand X], a “judicial precedent” does not “foreclose an agency from interpreting an ambiguous statute” in a reasonable way that differs from the “court’s opinion as to the best reading” of the statute, unless “the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” [Brand X, at 982-83.]
Cert Opp at 9.
Here’s the order. The Court will address two questions:
1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.
2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.
The Court declined to hear the third proposed question presented:
3. Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust.
From WaPo:
When a federal jury in Alaska in 1994 ordered Exxon to pay $5 billion to thousands of people who had their lives disrupted by the massive Exxon Valdez oil spill, an appeal of the nation’s largest punitive damages award was inevitable.
But almost no one could have predicted the incredible round of legal ping-pong that only this month lands at the Supreme Court.
In the time span of the battle — 14 years after the verdict, nearly two decades since the spill itself — claimants’ lawyers say there is a new statistic to add to the grim legacy of the disaster in Prince William Sound: Nearly 20 percent of the 33,000 fishermen, Native Alaskans, cannery workers and others who triumphed in court that day are dead.
Rob Natelson (Montana) has posted “The Original Understanding of the Indian Commerce Clause” on SSRN. Here is the abstract:
The United States Congress claims plenary and exclusive power over federal affairs with the Indian tribes, based primarily on the Constitution’s Indian Commerce Clause. This article is the first comprehensive analysis of the original meaning of, and understanding behind, that constitutional provision. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.
This paper has been published in the Denver University Law Review.
I’m about halfway through this paper right now. As the abstract indicates, Rob’s conclusion goes against nearly 200 years of settled Indian law, plus flatly contradicts the work of people like Bob Clinton and many others (including, I guess, myself). More later….
This case involves the tribal sovereign immunity of the Blue Lake Housing Authority. It is being appealed out of the California state court system. Here are the materials so far:
Cert Petition in Carls v. Blue Lake Housing Authority
Unpublished Cal COA (3rd) Opinion
They are available at the Supreme Court Project website.
This is an interesting development. I assume that Sawyer County will sue, along with the State of Wisconsin, to compel the payment of these taxes. And perhaps the Seventh Circuit will reach a different conclusion from the Sixth Circuit in KBIC v. Michigan. I wonder, however, if the Keweenaw Bay case’s expert reports were tribe-specific. Maybe, maybe not. Anyway, this interesting development may be a bad thing for Keweenaw Bay, who had to work to make sure the Supreme Court did not grant cert in their case. This development, for all practical purposes, appears to reopen that case.
From Indianz:
The Lac Courte Oreilles Band of Lake Superior Chippewa is telling tribal members not to pay property taxes in Sawyer County, Wisconsin.
Turtle Talk 
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