Supreme Court

Here is today’s order. The Court denied cert in Wasatch County v. Ute Indian Tribe (petition here) and Uintah County v. Ute Indian Tribe.

California v. Pauma Band Cert Petition

March 21, 2016March 21, 2016Matthew L.M. Fletcher2 Comments

Here is the petition in California v. Pauma Band of Luiseño Mission Indians of the Pauma and Yuima Reservation:

Cal v Pauma Cert Petn

Question presented:

In Edelman v. Jordan, 415 U.S. 651 (1974), this Court held that a waiver of state sovereign immunity must be “stated ‘by the most express language or by such overwhelming implication from the text as will leave no room for any other reasonable construction.’” Id. at 673 (alteration omitted). This case concerns a gaming compact between the State of California and the Pauma Band of Luiseno Mission Indians of the Pauma and Yuima Reservation. Both parties waived their sovereign immunity from suits arising under the compact, but only to the extent that “[n]either side makes any claim for monetary damages (that is, only injunctive, specific performance, including enforcement of a provision of this Compact requiring payment of money to one or another of the parties, or declaratory relief is sought) . . . .” App. 28a. A divided panel of the Ninth Circuit held that this limited waiver, which also appears in gaming compacts between California and 57 other tribes, waived the State’s immunity with respect to an award of $36.2 million in restitution.

The question presented is: Whether, under Edelman, the language of the limited waiver—which expressly excludes claims for “monetary damages” and references only injunctive relief, specific performance, and declaratory relief— waived the State’s sovereign immunity with respect to the district court’s monetary award.

Lower court materials here (panel, en banc).

United South and Eastern Tribes Amicus Brief in Support of the Tribal Petitioners against NLRB

March 21, 2016March 21, 2016Matthew L.M. Fletcher

Here is the USET brief in Saginaw Chippewa Indian Tribe v. NLRB:

USET Amicus in Support of Tribal Petitions

This one is substantially the same as USET’s brief in the Little River Band of Ottawa Indians Tribal Government v. NLRB case.

United States v. Bryant to be Argued April 19, 2016

March 18, 2016Matthew L.M. Fletcher

Here.

We’ve been posting briefs here.

Ute Mountain Ute & State of Colorado File Joint Amicus Brief in Support of Tribal Cert Petitions in NLRB Cases

March 18, 2016March 18, 2016Matthew L.M. Fletcher

Here is the brief:

Final CO-UMUT Amicus Cert Petition – Saginaw Chippewa and LRB

Judge Garland’s Indian Law Record

March 16, 2016March 16, 2016Matthew L.M. Fletcher1 Comment

President Obama is expected to announce D.C. Circuit Judge Merrick B. Garland to the Supreme Court.

Judge Garland has a very limited record on Indian law issues. He was on the panel that decided Ramapough Mountain Indians v. Norton, an unsigned per curiam decision from 2001, that affirmed the Interior Department’s decision not to acknowledge the Ramapough nation.

Of far more significant note, Judge Garland did not write the opinion but joined in the majority in San Manuel Indian Bingo and Casino v. NLRB. It is, of course, impossible to predict how a Justice Garland would rule on a case such as Little River v. NLRB or Saginaw Chippewa v. NLRB.

Update:

Judge Garland wrote the opinion in Klamath Water Users Assn. v. FERC, rejecting the petitioner’s challenge to an electric utility license on Article III standing grounds. Tribal interests opposed the petitioner as intervenors.

Judge Garland wrote the opinion in United States Air Tour Assn. v. FAA, rejecting a challenge to an FAA rule limiting commercial air tours in the Grand Canyon. In footnote 8, he wrote:

The Air Tour Association also argues that the Limitations Rule violates the equal protection component of the Fifth Amendment because it exempts flights to and from the Hualapai Indian Reservation from each tour operator’s annual allocation. See 14 C.F.R. § 93.319(f). The Association’s argument is founded upon Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2112–13, 132 L.Ed.2d 158 (1995), in which the Supreme Court held that “all racial classifications … must be analyzed by a reviewing court under strict scrutiny.” In Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), however, the Court upheld an employment preference for Indians in the face of an argument similar to that of the Air Tour Association, declaring that, “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians,” such treatment must be upheld. Id. at 555, 94 S.Ct. at 2485. And there is no dispute that the Hualapai exception is at least rationally related to “the government’s interest in fulfilling its trust obligation” to the Tribe. Narragansett Indian Tribe v. National Indian Gaming Comm’n, 158 F.3d 1335, 1340 (D.C.Cir.1998). Although the Air Tour Association contends that Adarand effectively overruled Mancari, the Supreme Court has made clear that the lower courts do not have the power to make that determination. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997) (“[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” (internal quotation marks omitted)). And this circuit has continued to apply Mancaripost-Adarand. See Narragansett Tribe, 158 F.3d at 1340.