Supreme Court

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

Congressional Authority to Reaffirm Tribal Criminal Jurisdiction over Non-Indians

Matthew L.M. Fletcher

The recent testimony before the Senate Indian Affairs Committee regarding the possible Congressional reaffirmation of tribal criminal jurisdiction over non-Indian domestic violence and sexual assault perpetrators — that we blogged about earlier — is now complete with the final version of Riyaz Kanji’s testimony on Congressional authority to take this action.

“The Supreme Court’s Indian Problem”

Matthew L.M. Fletcher

I just accepted an offer from the Hastings Law Journal to publish my new paper, “The Supreme Court’s Indian Problem.” Here’s the abstract:

This year, while accepting the “Rule of Law” award from the American Bar Association, Justice Breyer proclaimed that our constitutional system “floats on a sea of public acceptance.” At that time, Breyer’s statements were meant to highlight his expectation that the Court will decide its cases following the “rule of law.”

However, Breyer’s statement, while demonstrative of his faith in the rule of law, does not always ring true. In fact, as I argue, the Supreme Court often decides its cases by ignoring, rather than following, the rule of law. This problem is particularly acute in the body of federal Indian law – which has cast a disastrous shadow on tribal interests. Tribes have lost about three-quarters of their cases before the Supreme Court since 1988. Yet, curiously, prior to 1988, tribal interests won slightly more than half of their cases. What changed?

In this Article, I attempt to answer this question. I will show that the Court identifies important, unrelated constitutional concerns that arise often in Indian law cases – issues with which they and their clerks are familiar – and then decides those matters. Only afterward, and mostly as an afterthought, does the Court then turn to the federal Indian law questions. The Court’s federal Indian law analysis takes a secondary and often inferior role.

The result of this obfuscation is an unrelenting assault on tribal interests before the Court – and the rule of law more generally. In this Article, I offer the first in-depth empirical assessment of the Supreme Court’s recent Indian law decisions and argue in favor of a sweeping change in the means of analyzing Indian law. Instead of focusing on the Indian law questions, this Article shows how major Indian law cases were decided on other grounds to significant tribal disadvantage. Analyzing federal Indian law in this manner makes transparent the Court’s frightening disrespect for the rule of law.

Violence Against Indian Women

Matthew L.M. Fletcher2 Comments

The Senate Indian Affairs Committee heard powerful testimony from Indian women last week on the pervasive problem of violence against women. Riyaz Kanji of Ann Arbor’s Kanji & Katzen testified that Congress has authority to extend criminal jurisdiction over non-Indians to Indian tribes, if it chooses.

The Amnesty Report that helped to jump start this issue in Congress is here.

Sarah Deer’s recent editorial in Indian Country Today on the topic is here. And some of her related material is here, an article in the Suffolk Law Review.

Supreme Court & Indian Law

Matthew L.M. Fletcher

The Supreme Court issued its first order of the October 2007 Term last week — containing no Indian law grants, as I blogged elsewhere.

Today, the Court issued an order listing cert. denials, including Catawba Indian Tribe v. South Carolina (No. 07-69), Gros Ventre Tribe v. United States (06-1672), and Yakama v. Colville (No. 06-1588).

So what does this mean? By itself, I suppose it means nothing. But the Catawba and Gros Ventre cases were cases in which the tribal interests were petitioning (and the other case was an intertribal conflict) against a state and the federal government, respectively. A Court hostile to tribal interests would leave those cases alone.

With this round of cert. denials, keep in mind that the last time the S. Ct. granted cert. in an Indian law case was Wagnon v. Prairie Band Potawatomi Nation — and two “Westerners,” Rehnquist, C.J. and O’Connor, J., were still Members of the Court. Since then, the Court has denied cert. in something like 60 straight Indian law cases.

For background on my theory about how it matters that “Westerners” used to sit on the Supreme Court in the context of cert. petitions, see my editorial in Indian Country Today.

Of course, the editorial has an incorrect statement (my own fault) — for a few years in the early 1990s, there were four Westerners on the Court — Rehnquist, O’Connor, White, Kennedy.