They are available at the Supreme Court Project website.
Plains Commerce Bank — Petitioner Brief and Joint Appendix
They are available at the Supreme Court Project website.
Supreme Court
LCO Tells Tribal Members Not to Pay County Property Taxes
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.
Carcieri v. Kempthorne a “Petition to Watch”
SCOTUSBlog lists Carcieri v. Kempthorne as a petition to watch for the Feb. 22 conference.
There are some warning signs, notably the amicus brief filed by numerous states in support of Rhode Island’s petition. See Gregory A. Caldiera & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 American Political Science Review 1109, 1122 (1988 ) (“[A]micus curiae briefs filed in support of the petition for certiorari increase the estimated probability that the Supreme Court will grant by a magnitude of .5 or .6, depending upon the characteristics of a particular case.”).
As I argued earlier, however, (1) there is no circuit split; and (2) the issue may turn on the particular import of the Rhode Island Indian Claims Settlement Act, meaning that the outcome could have little or no import nationally. Moreover, the United States is in opposition, so these factors may be sufficient to persuade the Court to let this one percolate.
Split in State Court Authority on Whether Casino Dram Shop Actions are Barred by Tribal Sovereign Immunity
As Trent noted, the Oklahoma Supreme Court held 7-2 that dram shop actions filed against tribal casino operations are not barred by tribal sovereign immunity in Bittle v. Bahe. This decision conflicts with decisions of other state courts, including those of Arizona (Filer v. Tohono O’odham Nation), Texas (Holguin v. Ysleta del Sur Pueblo), and Washington (Foxworthy v. Puyallup). And, as we know by reading Rule 10 of the United States Supreme Court rules, the Supreme Court is predisposed toward hearing cases in which there is a split of lower court authority involving an important federal question.
This may be a troubling development, though perhaps not as a result of this case. If the tribe refuses to petition the Supreme Court for certiorari, then this case will be over. Moreover, even if the tribe petitions, the Court might let this one go because of lower court outcome isn’t troublesome to the Court.
“Prop. 2 and Michigan American Indian Students” — Michigan Journal of Race & Law Symposium
I will be giving a short talk at the Michigan Journal of Race and Law‘s symposium on affirmative action in Michigan post-Prop. 2 this Saturday. Here are materials for my talk:
Michigan Civil Rights Commission Report — “One Michigan” at the Crossroads: An Assessment of the Impact of Proposal 06-02
MCRC Report Attachment #4 — The Michigan Indian Tuition Waiver is Based on a Political Relationship, not a Racial Classification
Michigan AG Declination to Issue Opinion re: Michigan Indian Tuition Waiver
MSU Indigenous Law & Policy Center Letter to the Michigan Law Review Commission
Tribal Amicus Brief in Exxon Valdez Damages Case
Brief of Amicus Curiae National Congress of American Indians et al., in Exxon Shipping Co. v. Baker (No. 07-219).
Other briefs in this case are here.
“Preconstitutional Federal Power” Article
My paper on “Preconstitutional Federal Power” has been published by the Tulane Law Review. You can download it here.
Here’s the abstract:
In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law – the Foreign Affairs Power and the Indian Affairs Power – and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The Indian Affairs Power case, United States v. Lara, decided in 2004, included no historical reasoning and only offered the theory as dicta. However, the Court raised the theory, perhaps, as a means of placating the textualists on the Court who do not view the Indian Commerce Clause as a viable source of Congressional power in Indian Affairs. This Article offers a best defense for the proposition that Congressional plenary power in Indian Affairs might derive from a preconstitutional source, a defense that includes the original understanding of the Indian Affairs Power and that, unlike the Foreign Affairs Power, did survive the ratification of the Constitution.
Farmers Union Oil v. Guggolz — Plains Commerce Bank Redux
This is a case before the same trial judge as in Plains Commerce Bank in the D.S.D. This one is a slip and fall, but Farmers Union Oil the defendant in tribal court at Standing Rock. The judge followed Plains Commerce Bank and many other similar decisions in requiring the exhaustion of tribal court remedies, but then he took an unfortunate potshot at the CA8 opinion in Plains Commerce Bank:
I have previously cited in this order and opinion the case of Plains Commerce. I was the trial judge in that case. The case was affirmed on appeal by the United States Court of Appeals for the Eighth Circuit. As I read the appellate opinion, I was struck by the fact that such opinion would clearly and substantially broaden the jurisdiction of tribal courts in the Eighth Circuit. It would allow tribal courts to decide what common law principles were to be applied in tribal courts. This would be a significant expansion of tribal court jurisdiction in civil cases. In the past few days, I have noted that the United States Supreme Court has granted the petition of Plains Commerce for a writ of certiorari. Apparently, we will have further guidance from the Supreme Court.
MacArthur v. San Juan County Materials
The materials on MacArthur v. San Juan County (No. 07-701) are here. The petition is set for the Court’s conference on Feb. 15.
Narragansett Smokeshop Case — Jones v. Jennings — Cert Petition
A case that I suspect has a pretty good shot at being heard by the Supreme Court, Jones v. Jennings, will be on the Court’s conference agenda for January 18, 2008. The case involves the smashing of the Narragansett Tribe’s fledgling smokeshop by state officers. Jones, the police officer, broke the ankle of Jennings, a tribal member, during the conflagration (which was caught on tape and played all over Indian Country for months).
In particular, the questions presented are:
Turtle Talk 
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