Supreme Court – Page 35

1. Whether a contract for the purchase of goods entered into, and fully performed by, an Indian Tribe outside the exterior boundaries of the state in which the Tribe’s reservation is located can constitutionally subject the out of state vendor to the specific personal jurisdiction of the buyer’s state, under state laws purporting to regulate the sale of those goods in the buyer’s state.
2. Whether a state has specific personal jurisdiction to regulate a purchase of goods contract between an Indian on an Indian reservation outside the state and an Indian Tribe located within the state’s boundaries when the contract is performed on the
out of state Indian reservation.
3. Whether there is a constitutional or statutory right afforded to an Indian of one tribe to conduct business free from state regulation with an Indian of a different tribe, both of which are located in Indian country, under the Indian Commerce Clause.
4. Whether a tribally chartered corporation wholly owned by a member of a federally recognized Indian Tribe is an Indian for purposes of the protections afforded to Indians under federal law.

Lower court materials here.

Update:

Brief in Opposition

Petitioner’s Brief in McGirt v. Oklahoma

February 6, 2020Matthew L.M. Fletcher

Here:

Petitioner’s Brief

Pinoleville Pomo Nation v. JW Gaming Development LLC Cert Petition

February 6, 2020Matthew L.M. Fletcher

Here:

petition-for-a-writ-of-certiorari.pdf

appendix.pdf

Question presented:

Whether an Indian tribe’s governing body can be stripped of its sovereign immunity from suit for actions taken by its members in their official capacities, as long as a plaintiff merely names the members individually and those officials will be bound by any judgment entered.

Lower court materials here.

New Fletcher Paper, “Textualism’s Gaze”

January 31, 2020Matthew L.M. Fletcher

Available on SSRN, here.

Here is the abstract:

In recent years, perhaps because of the influence of Justice Scalia, the Supreme Court appears to place greater emphasis on texts than ever before. “We’re all textualists now,” Justice Kagan declared in 2015. But it is one thing to say a court will prioritize the text. It is another thing to choose which text is to be prioritized.

Follow the textualism of constitutional interpretation and one sees judges prioritize the public understanding of the privileged white men in power at the time of the framing of the constitutional text. Follow the textualism of federal statutory interpretation and one sees judges prioritize the text exclusively, and if the judges engage with the legislative history of the statute they will engage with the public understanding of the legislators who enacted the law, again, largely privileged white men. The victory of textualism is not necessarily in the outcomes, but in significantly narrowing the scope of evidence available to interpret the text, in some cases to almost nothing but the bare words of the statute. Women, persons of color, and other marginalized persons and entities are almost never relevant to the textualist’s gaze.

The narrow focus of the textualist’s gaze also warps how Indian law matters are decided. The judiciary rarely considers how the governments and people most affected by the text — Indian tribes and individual Indians — understand the meaning of the text. The judiciary, whether it intends to or not, considers Indians and tribes as extraneous to the interpretive process.

Cherokee Nation v. Bernhardt Cert Petition over United Keetoowah Band Trust Land Acquisition [updated with add’l cert stage materials]

January 29, 2020June 3, 2020Matthew L.M. Fletcher

Here is the petition:

cert-petition-1.pdf

Update:

US Brief in Opposition

Reply in Support of Petition

Questions presented:

1. Whether the Secretary of the Interior exceeded his statutory authority by taking land located within the reservation boundaries of one Indian Tribe and placing the land in trust for another Tribe, despite the objections of the first Tribe and in violation of a regulatory prohibition and the United States’ treaty promises to the first Tribe.

2. Whether the Court should hold this petition pending its disposition of Maine Community Health Options v. United States, No. 18-1023 (argued Dec. 10, 2019), because this case raises the same issue concerning implied repeals effected by appropriations laws and the proper standard for determining what law to apply.

Lower court materials here.

U. Chi. Law Review Podcast on the Murphy/McGirt Cases

January 15, 2020Matthew L.M. Fletcher

Here is “Briefly 3.10 – Is Half of Oklahoma Tribal Land?”

From the site:

This is Briefly, a production of the University of Chicago Law Review. Today we are discussing two cases pending before the Supreme Court, which will determine whether roughly half of the land in Oklahoma is actually an Indian Reservation . We’re joined by Elizabeth Reese, a Bigelow Fellow at the University of Chicago Law School, and Matthew L.M. Fletcher, Professor of Law and Director of the Indigenous Law & Policy Center at Michigan State University College of Law. Music from bensound.com.

SCOTUS Denies Cert in Cases Involving Nottawaseppi Huron Band Potawatomi, Chippewa-Cree, and Alabama-Coushatta Tribes

January 13, 2020Matthew L.M. Fletcher

Here is today’s order list.

The Court denied cert in Sequoia Capital Operations LLC v. Gingras; Spurr v. Pope; and Alabama-Coushatta Tribe v. Texas.