Supreme Court – Page 83

Ugh! No Bay Mills Decision Again This Week

April 23, 2014Matthew L.M. Fletcher1 Comment

No news again. Not sure what that means, but likely it means the Court is fractured. But then again, they usually are so that conclusion isn’t helpful.

SCOTUSblog data tells us that Justices Ginsburg and Kagan have not yet written for the December sitting, which is when the Court heard the Bay Mills argument. Usually, to balance workload, each Justice is assigned one opinion per sitting. But the Court heard 11 arguments in December, so at least two Justices will have two assignments. Justice Scalia, we know after today, has written twice for December, so we can say with some limited certainty that he will not be the author of the majority opinion in Bay Mills. In other words, it could be anyone.

I’m hoping for Justice Kagan (see my commentary on the argument). Her questions at oral argument suggested a narrow, statute-based view of the matter, though I am doubtful she would find in favor of the tribe. Justice Ginsburg dissented in Kiowa, and her opinion would likely go against the tribe in this one, too. The question there is how far she would go.

But it’s very possible neither Kagan nor Ginsburg write, which means that anyone could.

Cert Opposition Briefs in Village of Hobart v. Wisconsin Oneida

April 23, 2014May 1, 2014Matthew L.M. Fletcher1 Comment

Here:

US Opposition Brief

Tribe Opposition Brief

Petition is here.

Lower court materials here.

Please Read Justice Sotomayor’s Dissent in Schuette v. BAMN

April 22, 2014Matthew L.M. Fletcher2 Comments

Here.

An excerpt:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination.

Onondaga Nation Files Petition with Inter-American Commission on Human Rights

April 15, 2014Matthew L.M. Fletcher2 Comments

The Onondaga Nation Files Petition Against United States with Inter-American Commission on Human Rights

Sovereign Nation in Upstate New York Seeks International Support After U.S. Courts Fail to Address Violations

**LINK TO PHOTOS**

Washington, DC – Today, the Onondaga Nation, a treaty-recognized sovereign Indian nation with its homelands in upstate New York, filed a petition against the United States with the Inter-American Commission on Human Rights (IACHR). Since 1788, 2.5 million acres of land have been stolen from the Onondaga Nation by New York State, and the failure of the U.S. court system has left the Nation with no choice but to seek assistance for human rights violations from the international community.

To bring attention to the filing, chiefs from the Onondaga Nation and supporters gathered at the Friends Meeting House in Washington, DC wearing traditional dress and with a historic wampum belt commissioned for the Nation by President George Washington to signify peace and friendship while ratifying the 1794 Treaty of Canandaigua.

Click here to view photos of the Onondaga Nation’s demonstration outside the White House and the George Washington belt.

Click here to view the Onondaga Nation’s petition and annex to the petition as filed with the Inter-American Commission on Human Rights.

“Our access to basic equality and justice was fundamentally denied by the United States’ courts,” said Tadodaho Sid Hill of the Onondaga Nation. “Now, we’re calling on the international community to help us reach a healing process following centuries of violations and broken promises.”

On March 11, 2005, the Nation filed a Land Rights Action in the United States District Court, which the federal court dismissed. The Nation then appealed to the Second Circuit Court of Appeals, which affirmed that dismissal. Finally, the Nation filed a petition for a writ of certiorari with the Supreme Court seeking review of the dismissal and its affirmance. On October 15, 2013, the Supreme Court denied that petition. No further remedy is available in the United States court system.

“Where the U.S courts failed, the international community can help us preserve our role as an environmental steward of the land,” added Hill. “That means greater access to our surrounding lands and to cleansing the industrial pollution in Onondaga Lake, which remains a vital location to our nation’s spiritual life.”

The response from the U.S. courts bars the Nation from any domestic remedy and refuses it the chance to articulate the violations of New York State dating back to the late 18th Century. The federal courts’ inherently discriminatory ruling refused to consider the merits of the Nation’s case, holding that indigenous peoples’ claims for relief arising from violations of their land rights are “inherently disruptive” and, therefore, cannot be considered.

The Nation’s petition at the IACHR outlines the United States’ responsibility for violations of the Nation’s property rights, equality, judicial protection and due process – outlined in multiple domestic and international agreements, including multiple treaties, the American Declaration of the Rights and Duties of Man and the United Nations Declaration on the Rights of Indigenous Peoples.

A positive result for the Onondaga Nation at the OAS could establish a framework to resolve the ongoing dispute and offer a case study for indigenous peoples barred access to justice by the U.S. court system.

The Onondaga Nation has never sold or otherwise relinquished its lands or its rights as a sovereign nation. Between 1788 and 1822 the State of New York took approximately 2.5 million acres of Onondaga Nation land, violating federal law, the Constitution and various treaties. Major land “acquisitions” by New York State in the 18th century were conducted with unauthorized individuals without the knowledge or consent of the authorized Onondaga chiefs. On multiple occasions, the State deceived the Onondagas into thinking the State was only leasing the land.

About The Onondaga Nation: The Onondaga Nation is one of the six nations of the Haudenosaunee (Iroquois) Confederacy. Onondaga Nation survives as a sovereign, independent nation, living on a portion of its ancestral territory and maintaining its own distinct government, laws, language, customs, and culture. Today, the Onondaga Nation consists of a 7,300-acre territory just south of Syracuse, NY. For more information visit http://www.onondaganation.org/land-rights/onondaga-nation-files-suit-in-world-court/

# # #

Student Commentary on Michigan v. Bay Mills Indian Community

April 15, 2014Matthew L.M. Fletcher

Here, in the Duke Journal of Constitutional Law & Public Policy Sidebar. Titled A Tradition of Sovereignty: Examining Tribal Sovereign Immunity in Bay Mills Indian Community v. Michigan, written by Meredith L. Jewitt.

SCOTUSBlog Petition of the Day: Native Wholesale Supply v. Idaho

April 11, 2014Matthew L.M. Fletcher1 Comment

Here.

From SCOTUSblog:

Native Wholesale Supply Company v. Idaho

13-838

Issue: (1) Whether under circumstances in which a state is admittedly precluded from regulating an Indian it is also precluded from regulating a corporation wholly owned by an Indian and organized under the laws of a federally recognized tribe; (2) whether, under a state law that purports to give the attorney general power to “approve” all cigarettes before they may be imported into Idaho, the State of Idaho can prohibit an Indian-owned business on the Coeur d’Alene reservation from importing into that reservation cigarettes that are sold “FOB Seneca Nation” by a company wholly owned by a member of the Seneca Nation and licensed by the Seneca Nation to carry on such trade; (3) whether the State of Idaho’s cigarette-sale statutes are preempted to the extent that they are enforced in a manner that prohibits Native Wholesale Supply Company (“NWS”) from trading with Warpath Inc. (“Warpath”); and (4) whether the State of Idaho can constitutionally exercise personal jurisdiction over NWS, an Indian-chartered entity located on Seneca Nation of Indians Land, situated within the geographic boundaries of the State of New York, where NWS sells the tobacco products “FOB Seneca Nation” to Warpath, and the products are then transported to Warpath’s place of business on the Coeur d’Alene reservation.