Here:
Respondent Brief in Opposition to Petition for a Writ of Certiorari
The cert petition is here.
Amicus briefs in support of the petition are here.
Supreme Court
Indian Country Today Profile of Amy Coney Barrett
Here.
Alex Skibine on the Tribal Right to Exclude Nonmembers
Alexander Tallchief Skibine has posted “The Tribal Right to Exclude Non-Tribal Members from Indian-Owned Lands,” forthcoming from the American Indian Law Review, on SSRN.
Here is the abstract:
In 1981, the Supreme Court issued its decision in Montana v. United States, severely restricting the ability of Indian Tribes to assume civil regulatory and adjudicatory jurisdiction over non-tribal members for activities taking place on non-Indian lands within Indian reservations. The Court in Montana stated that “it could readily agree” with the Court of Appeals’ holding that the tribe could regulate the conduct of non-member on tribal lands. Yet, twenty years later, the Court issued its opinion in Nevada v. Hicks holding that in certain circumstances, the jurisdiction of Indian tribes could also be limited even if the activities of the non-members took place on Indian-owned lands.
It has been almost twenty years since Hicks and because of the cryptic and fractured nature of that decision, the federal circuits are divided and still trying to figure out under what circumstances tribal civil jurisdiction over non-members should be restricted when these activities take place on Indian-owned lands.
In this Article, I argue that among all the possible interpretations of Hicks, the one adopted by the Ninth Circuit makes the most sense. Under that interpretation, the so-called Montana framework used to divest tribes of jurisdiction is not applicable to cases where a tribe has retained the right to exclude. I argue that Hicks can be reasonably conceptualized as endorsing the 9th Circuit methodology. However, I also argue that Hicks should have been decided as a state jurisdiction cases and not a tribal divestiture of inherent sovereignty case. Re-imagining Hicks as a state jurisdiction case would not have changed the outcome but would have avoided the last twenty years of confusion surrounding how Hicks should be interpreted.
Highly recommended!
SCOTUS Long Conference Order List — Cert Denials Aplenty + 1 Voting Rights Grant
Here is today’s order list.
The Supreme Court denied cert in:
The Court held over Rogers County Board of Tax Roll Corrections v. Video Gaming Technologies, Inc. and In re Youngbear, and asked for a response (CFR) in United States v. Cooley.
Last week, the Court granted several cases, including an Arizona voting rights case we noted here.
Native America Calling TODAY on the Legacy of RGB and the Nomination of Amy Coney Barrett
Carole Goldberg & Matthew Fletcher on RBG’s Indian Law Legacy in the Marshall Project
Justice Ginsburg’s Indian Law Record
Justice Ruth Bader Ginsburg’s passing offers an opportunity for reflection on her Indian law legacy. As many of you know, we keep a list of modern era Supreme Court cases here. RBG was on the court nearly 30 years, and her record is extensive. It is also, from the point of view of tribal interests, checkered. But if her replacement had a similar record, it wouldn’t be a disaster for Indian country.
Overall, RBG voted in 51 cases in which the Court issued an opinion. She voted with tribal interests 23 1/2 times, against tribal interests 26 1/2 times, and 1 time voted with individual Indians against federal and tribal interests. She wrote 10 majority opinions (nearly 20 percent of those cases!), 3 1/2 favoring tribes (and 1 favoring individual Indians), and 6 1/2 against. Out of these 51 cases, tribes won 19 1/2 cases and lost 32 1/2 (33 1/2, if you count the 1 case involving individual Indians). She voted with tribal interests more often than the Court, but not by much. There are also two cases that were 4-4 ties (tribes won both), but we don’t know where she voted. [there are going to be errors in this post, I did it quickly, so chillax]
Incidentally, tribes have prevailed in 11 out of 13 cases since 2014 (!!!!).
Here are her majority opinions in reverse chronological order:
U.S. v. Bryant (2016)
Decision favoring federal court enhanced sentence under 18 U.S.C. § 117 of habitual D.V. offender with several (dozens?) of uncounseled tribal court convictions.
Sherrill v. Oneida Indian Nation (2005)
Terrible. Some say RBG regretted this decision. Led to the summary evisceration of the New York Haudenosaunee land claims.
Inyo County v. Bishop Paiute (2003)
Held tribes are not “persons” under 42 U.S.C. § 1983, and cannot sue states for violations of federal laws.
United States v. Navajo Nation (2003)
Struck a $600 million judgment favoring the Navajo Nation despite apparent corruption in the Interior Department.
C&L Enters v. Citizen Potawatomi (2001)
Found an implied waiver of tribal immunity in a boilerplate construction contract. RBG routinely voted against assertions of tribal, state, and federal immunuiy.
Arizona v. California (2000)
Allowed Quechan Tribes water rights claims to proceed.
Montana v. Crow Tribe (1998)
Excused state from having to repay taxes illegally collected from tribe.
Strate v. A-1 (1997)
Held against tribal jurisdiction over a car wreck on a state highway running on trust lands within a reservation.
Babbitt v. Youpee (1997)
Struck down the Indian Land Consolidation Act’s escheatment provision in favor of individual Indian interests.
Oklahoma Tax Commission v. Chickasaw Nation (1995)
Adopted incidence of tax analysis to strike state tax of motor fuels but to allow collection of state income tax of off-reservation income of tribal members.
RBG also wrote important concurrences and dissents. Here is a sampling:
Patchak v. Zinke (2018)
Wrote concurrence affirming constitutionality of Gun Lake Trust Lands Act in 5-4 case.
Lewis v. Clarke (2017)
Wrote concurrence against tribal interests in tribal employee immunity case.
Nevada v. Hicks (2001)
Wrote concurrence, apparently trying to stop the extension of her opinion in Strate.
Here is where I called Donald Trump an asshole for predicting RBG’s death. He remains an asshole.
There is a lot more to say, but this is it for now.
Emory to Host Panel on McGirt
Monday, October 12 | 4 PM | ZOOM
McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America
In celebration of Indigenous Peoples’ Day, Emory University Professor of English Craig Womack (Creek) chairs a panel discussion titled McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America.
Sarah Deer (Creek), University of Kansas Department of Women’s, Gender, and Sexuality Studies; Barbara Creel (Jemez Pueblo), University of New Mexico School of Law; and Andrew Adams III (Creek), Muscogee Creek Nation Supreme Court; and Professor Womack will explore the implications of the decision regarding the Creek Nation for Oklahoma tribal nations and other parts of Indian Country.
ZOOM registration link for this webinar: https://emory.zoom.us/webinar/register/WN_fY3DxgwFTw-SDJDB_owEbA
This lecture is made possible through the generous financial support of the Hightower Lecture Fund and is co-sponsored by the Native American and Indigenous Students Initiative, the Michael C. Carlos Museum, and the School of Law Health Law, Policy & Ethics Project.
Grant Christensen on Indigenous Perspectives on Corporate Governance
Grant Christensen has posted “Indigenous Perspectives on Corporate Governance” on SSRN. Here is the abstract:
The foundation of the modern corporation is built upon the separation of labor and capital. These entities were anathema to most Indigenous peoples when the Virginia Company was chartered in 1606 for the purpose of settling American lands. Over centuries of colonization federal law worked to assimilate Native Americans. Tribes were encouraged, even forced, to create their own corporate entities. Indelibly, consistent with their inherent sovereignty, Indigenous groups fused autochthonous legal principles into these corporate structures. Today, in the shadow of the #BLM movement and societal demands that corporations become more responsive to their communities and to the environment, shareholder primacy has reached its nadir. As corporate governance seeks to replace it with something stakeholder centered autochthonous principles gleaned from Indigenous corporations offer a way forward. These proposed reforms are as varied as the chthonic law they are built upon and range from making nature itself a corporate shareholder to issuing shares that gain voting rights only after they have been held to maturity.
Mark Trahant (ICT) on Native Lawyers Who Should Be Considered for SCOTUS
Here is “The most important thing a president can do.”
An excerpt:
Yet there have always been Native American lawyers who could have served; the talent has always been there. It’s possible the next round of appointments could make history because so many Native American lawyers have the same or better legal experience than other appointments to the courts.
“Even over the past few years we have always had really great well qualified attorneys,” said Joel West Williams, Cherokee Nation, a senior attorney with Native American Rights Fund in Washington. “The biggest thing that has changed is they have worked their way into positions such as state supreme court justice — and that is a prime position from which to be selected.”
There are three Native Americans actively serving in the federal courts. President Barack Obama appointed U.S. District Judge Diane Humetewa, Hopi, in Arizona, and U.S. District Judge Derrick Watson, Native Hawaiian, in Hawaii. President Trump appointed U.S. District Judge Ada Elene Brown, Choctaw, in the Northern District of Texas.
There are three Native Americans now serving on state supreme courts, Justice Rachel Montoya-Lewis, Isleta Pueblo, in Washington, Ann McKeig, White Earth, and in Oklahoma, Dustin Rowe, Chickasaw.
Turtle Talk 
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