Supreme Court

Tales from the Cert Pool: Circuit Splits and Federal Indian Law

Matthew L.M. Fletcher

Most cases now reach the Supreme Court because of circuit splits or splits in authority between federal courts of appeal and state supreme courts, but federal Indian law is an exception. In my study of the digital archive of Justice Blackmun’s cert pool memos from docket years 1986-1993, perhaps a quarter of cases that attracted the Court’s attention (reaching the so-called “discuss list” at conference) did so because there was a split.

One reason for the lack of circuit splits in federal Indian law is geography — well over 80 percent of cert petitions arise out of the Eighth, Ninth, and Tenth Circuits (and the states located within those circuits).

Moreover, because the cert petition subject matters are based on treaties or statutes that apply only within a state or a region, there is little likelihood of there ever being a split where the federal circuit and the state supreme court agree. Two examples from my forthcoming paper, “Factbound and Splitless”:

In South Dakota v. Spotted Horse, the Justice Blackmun’s clerk wrote a supplemental memo to the cert pool memo in which she wrote, “As the poolwriter noted, there will never be a split on the question of South Dakota’s jurisdiction over these tribal highways because both CA8 and the S.D. SCt agree that the State is without jurisdiction.” In Tarbell v. United States, a criminal case involving the application of a federal statute that applied to New York Indians, the cert pool memowriter (Mark Snyderman, an O’Connor clerk) noted, “Of course, NY state is probably the only other jurisdiction that would have an opportunity to rule on the issue.”

In one famous instance, the Court granted cert in a case thinking there was a circuit split when there really wasn’t (or more accurately, the split dissolved when the Court decided the case). The cases were Anderson v. Wisconsin Dept. of Revenue and Oklahoma Tax Commission v. Sac and Fox Nation. In Anderson, the WI Supreme Court ruled that Indians living off the rez but working on the rez have to pay state income taxes. In Sac and Fox, the CA10 ruled that Indians living on trust land and working for the tribe on trust land don’t have to pay tax. That’s the split, but the split disappeared when the Court decided that trust land is the same as “Indian Country” — making the factual predicate for the split (the residence of the tribal member: one was off, one was on) disappear.

I go into greater depth in the paper, but the story basically is this. The OTC’s petition in Sac and Fox reached the Court first, but neglected to mention the Wisconsin case. The Wisconsin case reached the cert pool next, alleging the split in authority. The cert pool writer thought the Sac and Fox case was factually messier (because of the trust land question) so recommended the Court grant cert in Anderson. Also, the cert pool memowriter argued that the OTC was a bad litigant for not noting the split in the first place, so recommended that the Court go for the Wisconsin case instead. But Anderson filed indigent, and he shouldn’t have, so the Court had to order him to comply with SCT rules before his appeal would proceed. In the meantime, the Court decided to hear Sac and Fox instead. The Anderson pool memo is here and the Sac and Fox memo is here.

And it’s good thing too. Bill Rice’s mastery of oral argument before the Supreme Court can be heard here (with a little help from Edwin Kneedler).

Had the Court decided Anderson instead, it seems clear to me that it would have ruled against Anderson, who was living off the rez and refusing to pay state income taxes. Who know what would have happened to Sac and Fox Nation?

Tales from the Cert Pool: Cherokee Nation v. US (Arkansas River Navigation System claim)

Matthew L.M. Fletcher

The Cherokee Nation brought suit against the United States over the Arkansas River Navigation System, arguing that the government’s actions violated the “fair and honorable dealings” language of the Indian Claims Commission Act, 25 U.S.C. 70a. The Court denied the petition.

The cert pool memo in the case includes some of the most exasperated language from a clerk in any of the Indian law related cert pool memos in the Blackmun Digital Archive:

In providing for ‘claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity,’ [25 U.S.C. § 70a] Congress invited litigation on a potentially limitless class of so-called ‘moral’ claims against the govt. … But how’s a ct to tell when the govt has done something that, while permissible under law and equity, is nonetheless ‘unfair,’ ‘dishonorable,’ or ‘immoral?’ Over the years, the cts have tried to give shape to the inquiry by requiring a tribe asserting a moral claim to demonstrate a relevant ‘special relationship’ with the fed govt. Yes, as this case shows, that inquiry can be as amorphous as the one it’s supposed to clarify. Arguably, in the words of one judge, having a ‘special relationship’ w/ the govt means simply ‘that though there is no contract or treaty obligation, or formal trusteeship, honor may oblige the United States to take steps to protect Indians…. What honor requires depends on circumstances and will vary from case to case according to the conscience of the court.’ [United States v. Oneida Indian Nation of New York, 576 F.2d 870, 883 (Ct. Cl. 1978) (Nichols, J.).] Given the strangeness of the entire inquiry, one cannot easily evaluate either the merits or the certworthiness of petr’s claim.

Cert Pool Memo at 8-9, Cherokee Nation of Oklahoma v. United States, 504 U.S 910 (1992) (No. 91-1354).

What’s even more interesting is the annotation added to the memo by Justice Blackmun’s clerk, who is identified as “NB”:

I would not want to see the Ct take this case. Because it is not one the Ct would handle well, it would likely declare the provision to be unenforceable. (Imagine the opn of Scalia, J.) I think in the long run your friends are best served by denying cert.

Id. at 11.

Tales from the Cert Pool: Justice Blackmun’s Papers on Cotton Petroleum

Matthew L.M. Fletcher1 Comment

Cotton Petroleum Corp. v. New Mexico is one of the harshest outcomes in the modern era of Indian law cases decided by the Supreme Court. In this case, the Court held that states may tax non-Indian-owned businesses doing business in Indian Country, even where the tribe has imposed its own tax. In short, the states may double-tax non-Indians, effectively preempting tribal taxes on the tribe’s own land.

The recent uploading of Justice Blackmun’s papers on the internet offers a glimpse into the background of the case.

In Cotton Petroleum, two documents are available: The cert pool memo and Justice Blackmun’s docket sheet recording the votes of the Justices.

The Court decided to grant certiorari in this case over the recommendation of the cert pool memo to deny cert. Justices White, Stevens, O’Connor, and Blackmun voted to grant cert (in accordance with the Rule of Four, only four votes are required to grant cert), while Rehnquist, Brennan, Marshall, Scalia, and Kennedy voted to deny.

One interesting (and awful) tidbit from the cert pool memo is that the memowriter noted that the tribal interests weren’t represented in the litigation and that, importantly, Cotton Petroleum hadn’t introduced evidence about the impact of New Mexico’s tax on tribal sovereignty:

“As [New Mexico] and [state] amici explain, this Court’s precedents require a showing of actual impact on tribal interests in self-government before pre-emption will be found, and [Cotton Petroleum] failed to introduce evidence of such impact in this case.” Cert Pool Memo at 7.

As noted above, the impact of New Mexico’s tax on tribal sovereignty was devastating, but since Cotton Petroleum was never in a position to make the argument, it was never developed.

Moreover, in a case denied cert that same Term, Rodney, Dickason v. Revenue Division of New Mexico, the cert pool memowriter (Deborah Malamud of NYU) argued that “the Indian preemption framework serves a substitute for the now-repudiated doctrine that state law has no effect on Indian reservations…. As that doctrine was geographical in nature, perhaps it makes sense that those same limits should apply to its modern substitute.” Cert Pool Memo in Rodney, Dickason at 8-9. But, alas, the Court decided not to adopt such a workable bright-line rule.

More tales from the cert pool memos will follow over the next several weeks.

The Exxon Case, Indian Country, and Maritime Law

Matthew L.M. Fletcher1 Comment

The Supreme Court agreed to hear the Exxon case. The case stems back to one of the worst ecological events in the last few decades, the oil spill resulting from the supertanker Exxon Valdez’s running aground. Exxon is appealing a $2.5 billion punitive damages award. Exxon thought the Court was ripe to reverse large punitive damage awards because of recent cases striking them down in constitutional grounds, but the Court is not going to review the punitive damages on those grounds. Instead, the Court will be looking at Exxon’s maritime law-related claims.

What is interesting in that choice (other than the obvious interest that Alaskan Native and Pacific NW tribes have in the direct impact of the event) is that maritime or admiralty law is a uniquely federal field of law that has very little constitutional grounding. In other words, it is practically an all-federal common law field — just like federal Indian law.

And, as we know from federal Indian law, the Court is not constrained by constitutional and statutory language when applying federal Indian law. My guess is that the Court will strike down the punitive damage award, or else they would have let this award stand.

Chief Justice Roberts & Federal Indian Law

Matthew L.M. Fletcher

Long before John G. Roberts, C.J. became life-tenured, he practiced. And he worked on at least three Indian law-related cases: Alaska v. Native Village of Venetie, Rice v. Cayetano, and (briefly) Roberts v. United States. Also, as part of President Reagan’s Office of Legal Counsel, he vetted several Acts of Congress related to Indian tribes.

Roberts won Venetie, representing the State of Alaska. He lost Rice, representing the State of Hawaii. And the Court denied his petition for cert on behalf of Hollis Roberts (no relation, one presumes) in Roberts v. U.S.

The now semi-notorious brief Roberts filed in Alaska v. Venetie is here: Venetie Petr Brief. It is notorious for the reversal of the “deadliest enemies” language in United States v. Kagama. The Kagama Court wrote that states and state citizens were the deadliest enemies of Indians and Indian tribes, but the Venetie brief (for no real good reason) altered the quote to mean that Indians and Indian tribes were the deadliest enemies of states and state citizens. Here’s my own paper on the archaic notion that states and tribes are “deadliest enemies.”

Hawaii’s brief in Rice v. Cayetano is here: Rice Resp Brief

Roberts’ cert petition in Roberts v. US is here: Roberts v. United States Cert Petn. This one is especially important since Roberts (and Roberts) brought a challenge to Section 465, the fee to trust statute. There is ongoing litigation involving Section 465 that may soon be appealed to the Supreme Court. To some extent, the legal challenge to Section 465 has morphed since the 1999 cert petition, but it is significant that Roberts, C.J. is aware of this kind of case.

Finally, we include the documents Roberts wrote as a member of the OLC. These came out during his Senate confirmation process.

Kickapoo OLC Memo

Reagan Indian Policy OLC Memo

Tribal Tax Status Act OLC Memo

Utah Paiute Act OLC Memo

Zuni OLC Memo

Shoalwater Bay OLC Memo

Las Vegas Paiute OLC Memo

I guess what these memos demonstrate is that young Roberts was a serious conservative and a funny guy (unless you were the subject of the humor).

Mich. Supreme Court Justice Cavanagh Talk: Michigan Indian Judicial Association

Matthew L.M. Fletcher1 Comment

Justice Michael Cavanagh, the Michigan Supreme Court’s liaison with Michigan’s tribal courts, is speaking before the members of the Michigan Indian Judicial Association this morning.

Justice Cavanagh, along with Tribal Judge Michael Petoskey, spearheaded the Court’s adoption of Michigan Court Rule 2.615, extending comity to tribal court judgments.

Justice Cavanagh wrote about the origins of the rule in an article published in the University of Detroit Law Review. Download Justice Cavanagh’s Article.

Tribal courts from numerous tribes appeared at this talk today at the MSU College of Law: Nottawaseppi Huron Band of Potawatomi Indians, Pokagon Band of Potawatomi Indians, Little Traverse Bay Bands of Odawa Indians, Little River Band of Ottawa Indians, Bay Mills Indian Community, Keweenaw Bay Indian Community, Saginaw Chippewa Indian Tribe.

Justice Michael F. Cavanagh

Justice Cavanagh received a bachelor’s degree from the University of Detroit in 1962 and his law degree from the University of Detroit Law School in 1966. He began his career as a law clerk for the Michigan Court of Appeals. In 1967, Justice Cavanagh was hired as an assistant city attorney for the City of Lansing and thereafter was appointed as Lansing City Attorney, serving until 1969. He then became a partner in the Lansing law firm of Farhat, Burns and Story, P.C. In 1971, he was elected judge of the 54-A District Court. Justice Cavanagh was then elected to the Michigan Court of Appeals, where he served from 1975-1982. At that time, he was the youngest person ever elected to the Michigan Court of Appeals. Justice Cavanagh was elected to the state Supreme Court in 1982 and was re-elected in 1990, 1998, and 2006. He served as Chief Justice from 1991-95. Justice Cavanagh’s current term expires January 1, 2015.

The son of a factory worker and a teacher who moved to Detroit from Canada, Justice Cavanagh worked on Great Lakes freighters during the summers to help pay his tuition at the University of Detroit. During his years in law school, he was employed as an insurance claims adjuster and also worked for the Wayne County Friend of the Court as an investigator.

Justice Cavanagh has participated in numerous community and professional activities, including Chairman of the Board of the American Heart Association, Past President of the Incorporated Society of Irish/American Lawyers, Board of Directors of the Thomas M. Cooley Law School, and the Commission on the Future of the University of Detroit Mercy . He is a Member of the Institute of Judicial Administration, New York University Law School. He has served as Vice President of the Conference of Chief Justices, Chair of the National Interbranch Conference of Funding the State Courts, and member of the National Center for State Courts Court Improvement Program. Other appointments include the Michigan Justice Project, Chairman of the Judicial Planning Committee, Michigan Crime Commission, Judicial Coordinating Committee, and Chair of the Sentencing Guidelines Committee. Justice Cavanagh is the Supervising Justice of the Michigan Judicial Institute. Justice Cavanagh was instrumental in the planning, design, construction and eventual completion of the Michigan Hall of Justice. He has served as Supreme Court Liaison, Michigan Indian Tribal Courts/Michigan State Courts since 1990, and has attended many national Indian Law conferences and participated in Federal Bar Association Tribal Court symposiums.

Justice Cavanagh and his wife, Patricia, are the parents of three children, and have two grandsons. The Cavanagh family resides in East Lansing .

Kevin Washburn: A Legal History of Bryan v. Itasca County

Matthew L.M. Fletcher

Kevin Washburn has posted his paper, “The Legacy of Bryan v. Itasca County: How a $147 County Notice Helped Bring Tribes $200 Billion in Gaming Revenue.”

From the abstract:

The Supreme Court’s landmark 1976 decision in Bryan v. Itasca County is known within Indian law academia for the story that Professors Phil Frickey and Bill Eskridge tell about the case: it reflects a dynamic and pragmatic interpretation of a termination-era statute to limit Congressional termination’s harmful legacy during a more enlightened era of tribal self-determination. What is less well-appreciated about the case is that it provided the legal bedrock on which the Indian gaming industry was built. This article explores the genesis of the litigation and traces its path, describing how it came to produce a unanimous Supreme Court opinion of surprising breadth. It also demonstrates that the right to engage in gaming, which ultimately has produced vast tribal economic development and even riches for some tribes, had its roots as much in Indian poverty as in Indian sovereignty.

A Legacy of Employment Division v. Smith?

Matthew L.M. Fletcher1 Comment

From the NYTs:

“It all began with an Indian who wanted to eat peyote.

“His name was Alfred Smith. He belonged to the Klamath tribe in Oregon and was a member of the North American Church, whose sacramental rites included ingesting peyote buds.

“On March 2, 1984, when he told his boss at the alcohol and drug treatment center where he worked that he would be attending a church meeting the following day, he was told that if he used peyote there he would be fired. He did, and he was.

“It’s a circuitous road from there to a federal appeals court ruling last week that the village of Mamaroneck had improperly denied an application by the Westchester Day School, an Orthodox Jewish school, for a new $12 million classroom building.

“Peyote or no peyote, land-use planning and zoning board decisions aren’t made for thrilling public debate — unless it’s your backyard that’s involved. But the path from the North American Church to the Orthodox day school does have an Alice in Wonderland quality. It has brought the federal government someplace it has almost never been — the realm of local land use, planning and zoning decisions.”

The Second Circuit’s opinion is here. Employment Division v. Smith is here.

Larry Plamondon and the “Keith Case”

Matthew L.M. Fletcher1 Comment

We had the pleasure of hearing the story of Larry Plamondon, a member of the Grand River Band of Ottawa Indians, who was the defendant in the famous “Keith Case,” known in the U.S. Reporter as United States v. District Court, 407 U.S. 297 (1972). The “Keith Case” was announced by the Court on June 19, 1972 — two days after the famous Watergate burglary.

Here’s how Larry tells it in his memoir, “Lost From the Ottawa: The Story of the Journey Back.”

“Though I didn’t know it at the time this Supreme Court decision and the Watergate break-in were connected. Years later it was explained to me.

“It went down like this: The Justices decided the Supreme Court wiretap issue on Friday the 16th of June. According to Court rules the decision was to be kept secret until it was released by the Court [–] in this case, the following Monday. However, someone at the High Court (Rehnquist, or his clerk?) notified the White House and informed them the wiretap issue had been lost.

“This meant that any wiretaps installed by the Executive branch, or its agents, or Nixon’s re-election committee would be illegal on Monday, the 19th, when the ruling was made public. The Watergate burglars were sent in to the Democratic National Headquarters to retrieve the electronic listening devices on Saturday, the 18th of June, before the Monday release of the decision made warrantless wiretaps unconstitutional. The rest, as they say, sucks.”

Plamondon at 276.

I haven’t been able to find (in my ten minutes of research) whether or not anyone other than Larry and a couple conspiracy theorists have made this serious claim. If Rehnquist, who sat out the Keith case deliberations because he was personally involved in the prosecution of Larry Plamondon, or one of his clerks, called the White House to give them a heads up about the outcome AND that communication inspired the Watergate break-in, then … whew!

Cert Petition in Carcieri v. Kempthorne

Matthew L.M. Fletcher1 Comment

From Indianz.com:

Rhode Island appeals land-into-trust ruling
Friday, October 19, 2007

The state of Rhode Island is asking the U.S. Supreme Court to hear a land-into-trust case that is being watched by tribes nationwide.

In July, the 1st Circuit Court of Appeals ruled that the Bureau of Indian Affairs can place 31 acres in trust for the Narragansett Tribe. The tribe is like any other tribe and can follow the Indian Reorganization Act, which authorized the land-into-trust process, the court said.

As I will argue in my forthcoming article, “Factbound and Splitless: An Empirical Study of the Impact of the Certiorari Process on Federal Indian Law,” the Supreme Court is unlikely to grant cert. in this case for two important reasons. First, there is no circuit split (“splitless”). What that means is that the federal courts of appeal that have addressed the question of the constitutionality of the fee to trust process (25 U.S.C. § 465) — the 8th Circuit in South Dakota v. Kempthorne, the 10th Circuit in Utah v. Shivwits, and the 11th Circuit in Roberts v. U.S., are examples — have held (just as the 1st Circuit did here) that the statute is constitutional.

Second, this case involves the muddying aspects of the Rhode Island Indian Claims Settlement Act and how it affects the application of § 465, rendering this case a bit messy as a factual matter (“factbound”). If this was a straight-up interpretation of § 465 without the Settlement Act’s application, the Court would be more likely to grant cert (although, without a split, not so much). In short, this case implicates a relatively small number of tribes (those Rhode Island tribes).

Land-into-Trust Decision:
Carcieri v. Kempthorne (July 20, 2007)

Earlier 1st Circuit Decision:
Carcieri v. Norton (February 9, 2005)

Relevant Documents:
Carcieri v. Norton Briefs, Opinions (NARF-NCAI Tribal Supreme Court Project

Relevant Laws:
Rhode Island Indian Claims Settlement Act (US Code)

Relevant Links:
Narragansett Tribe – http://www.narragansett-tribe.org
Tribal Supreme Court Project – http://www.narf.org/sct/index.html