Brief filed in suit against Puyallup Police. Here.
Previous coverage here.
Supreme Court
Bardos v. Twenty-Nine Palms Enterprises Corp. Cert Petition
Here.
Question Presented:
Absent express federal authorization, the State of California lacks jurisdiction to regulate the licensing
of contractors on the tribal trust land of the Twenty- Nine Palms Band of Mission Indians. Neither Public Law 280 nor any other federal law authorizes Call- fornia to so regulate. May a tribal corporation none- theless act as a private attorney general by suing a non-Indian contractor in state court for disgorgement under California Business & Professions Code § 7031(b), for being unlicensed while constructing improvements on tribal trust land in connection with a tribal gaming enterprise?
Previous coverage here.
Which Supreme Court Justice Are You?
Supreme Court Denied Cert in Native Village of Kivalina v. Exxon Mobil
OSG Recommends Denial of Michigan’s Cert Petition in Vanderbilt Casino Dispute
Here is the brief:
Complete Cert Stage Briefing in Native Village of Kivalina v. ExxonMobil Corp.
Miller v Wright Cert Opposition Brief
Here:
The petition is here. No chance for a grant. I wouldn’t have even filed an opposition….
Columbia Law Review Article on Constitutionality of VAWA/TLOA-Type Statutes
Zachary S. Price has published “Dividing Sovereignty in Tribal and Territorial Criminal Jurisdiction” in the Columbia Law Review.
Here is the abstract:
In both federal Indian law and the law regarding United States territories, the Supreme Court in recent decades has shown increasing skepticism about previously tolerated elements of constitutionally unregulated local governmental authority. This Article proposes a framework for resolving constitutional questions raised by the Court’s recent cases in these areas. Focusing on the criminal context, where the stakes are highest both for individual defendants and for the affected communities, this Article considers three issues: (1) whether and under what circumstances Congress may confer criminal jurisdiction on tribal and territorial governments without requiring that those governments’ enforcement decisions be subject to federal executive supervision; (2) whether double jeopardy should bar successive prosecution by both the federal government and a tribal or territorial government exercising federally authorized criminal jurisdiction; and (3) what, if any, constitutional procedural protections apply when a tribal or territorial government exercises criminal jurisdiction pursuant to such federal authorization.
Through close examination of these three questions, this Article aims to show that framing the analysis in terms of divided sovereignty, and recognizing the close parallels between tribal, territorial, and related federal-state contexts, may yield the most attractive resolutions that are viable in light of the Supreme Court’s recent decisions. This Article contrasts this approach with an alternative framework that would organize the analysis around a distinction between “inherent” and “delegated” governmental authority.
Looks like a fascinating paper from a former OLC attorney. Will study with interest.
ICT’s Baby Veronica Coverage: The Brown Family Perspective
Here.
This much is clear: If one did not know that this small family was at the center of one of the most important Indian law cases in the last 30 years, the Browns would seem like any other family at 6 o’clock in America. Two tired parents, a three-year-old with endless energy, dinner on the stove, dogs yapping, geese squawking and a house in the middle of remodeling. In military-speak, they are squared away.
Blog Post of the Day — “The Frequent Irrelevancy of the Supreme Court”
Possibly the best blog post this year (so far) comes from Sr. federal trial judge Richard George Koft on his great blog Hercules and the Umpire. It is “The Frequent Irrelevancy of the Supreme Court.” Judge Kopf writes from the POV of a federal trial judge:
A lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis. Take, for example, the Daubert case that was supposed to be a big deal when it came to expert testimony. Boiled down, Daubert simply said that an expert had to have an adequate foundation for his or her opinion. Well, . . . sure. The “field” absorbed Daubert with little or no change in what was actually going on in most federal trial courts. A similar shrug happened with the “big” pleading case of Bell Atlantic v. Twombly. Very little, if anything, changed “in the field.” Prior to Twombly, most of the time, the goofy cases got weeded out. Same, same after Twombly.
I think the same of is often (maybe not “frequent[ly]” but some of the time) true in Indian law. My vote for most irrelevant Indian law decision of the last ten years is Plains Commerce Bank v. Long Family Land and Cattle Co. The law going in to that case, which involved tribal civil jurisdiction over nonmembers, was that the Montana “exceptions” applied to on-reservation lands owned by non-Indians, and that it was difficult to meet the exceptions. The law after that case? No change whatsoever, with some fairly minor tightening of the second Montana exception where the Chief Justice quoted the Cohen Handbook:
One commentator has noted that “th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences.” Cohen §4.02[3][c], at 232, n. 220.
Other than that (which is basically dicta), n0 new law at all. There was no point, other than to throw a bone to a nonmember bank that a tribal jury found to have racially discriminated against tribal members on their commercial loans, a verdict not preserved for review by the bank.
What’s your vote? Comments welcome.
Turtle Talk 
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