cert petition

Seminole Tribe v. Stranburg Cert Petition

Matthew L.M. Fletcher1 Comment

Here:

Seminole Tribe v. Stranburg Cert Petition

Question presented:

Florida imposes a tax on gross receipts from utility services that are delivered to retail customers. Under express statutory authority, utility providers may separately itemize this utility tax on a customer’s bill and add it to the total charge for utility services. If the utility provider does so, the customer is legally required to remit the tax to the utility provider, which then transfers the payment to the State. Here, petitioner is a federally recognized Indian tribe that has purchased utility services delivered to tribal reservations. Petitioner’s utility providers have exercised their statutory right to separately itemize the utility tax when billing the Tribe for such services. 

The question presented is: 

When a utility provider exercises a state-law right to expressly pass on a utility tax to a federally recognized Indian tribe for utility services delivered to the tribe’s reservations and the tribe is therefore legally obligated to pay the tax, is the tax an impermissible
direct tax on the tribe?

Lower court materials here.

Saginaw Chippewa v. NLRB Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Saginaw Cert Petition and Appendix- Filed

Questions presented:

For more than sixty years, the National Labor Relations Board correctly declined to exercise jurisdiction over tribal operations on tribal lands. But in recent years, the Board has belatedly asserted the extraordinary power to regulate the on-reservation activities of sovereign Indian tribes, precipitating a three-way circuit split in the process. Nothing in the text of the National Labor Relations Act changed in that interval; it contains no language granting the Board authority over Indian tribes. Nor has the language of various Indian treaties, like those between the Saginaw Chippewa Indian Tribe and the United States, changed; they continue to recognize the Tribe’s authority to exclude non-members. And despite the Board’s complete lack of expertise in Indian law, the Board now dictates that some tribal operations are subject to the NLRA and others are not based on its evaluation of the centrality of certain functions to tribal sovereignty and subtle differences in treaty language. 

This case presents two questions, both of which have divided the courts of appeals:

(1) Does the National Labor Relations Act abrogate the inherent sovereignty of Indian tribes and thus apply to tribal operations on Indian lands? 

(2) Does the National Labor Relations Act abrogate the treaty-protected rights of Indian tribes to make their own laws and establish the rules under which they permit outsiders to enter Indian lands?

Lower court materials here.

 

Little River Band v. NLRB Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Little River Petition and Appendix COMBINED

Question presented:

Whether the National Labor Relations Board exceeded its authority by ordering an Indian tribe not to enforce a tribal labor law that governs the organizing and collective bargaining activities of tribal government employees working on tribal trust lands.

Lower court materials here.

Cert Petition (Yes, Another One) in Challenge to Crow Water Settlement

Matthew L.M. Fletcher1 Comment

Here is the petition in Crow Allottees v. Dept. of Justice:

Crow Allottees Cert Petition

Question presented:

Can the water rights owned by individual Crow Indian allottees – which this Court in United States v. Powers, 305 U.S. 527 (1939) recognized as distinct individual rights, separate from water rights possessed by the Crow Tribe – be awarded to the Crow Tribe in negotiations between the United States, the tribe, and the State of Montana?
Further, do the Montana Courts have jurisdiction to decide these questions of federal law related to allottees’ rights?
Lower court materials: briefs, Mont SCT Opinion.
Related federal court materials here.

Still Another Cert Petition: Oklahoma “Sacred Rain Arrow” License Plate

Matthew L.M. Fletcher

Here is the petition in Cressman v. Thompson:

Cert Petition

Question presented:

Oklahoma compels Keith Cressman to display an image of the “Sacred Rain Arrow” sculpture from his vehicle – via his standard license plate – although he objects to displaying that image. This Court addressed the same issue in Wooley v. Maynard, 430 U.S. 705 (1977), holding New Hampshire violated a couple’s right to free speech by forcing them to display the state motto “Live Free or Die” on their vehicle’s standard license plate over their objection. But the Tenth Circuit distinguished Wooley on the ground that Wooley concerned words, not images.

The Tenth Circuit – creating a conflict with the Sixth Circuit- held artistic images disseminated in significant numbers are not pure speech and must be analyzed as symbolic speech instead. The Tenth Circuit then compounded a pre-existing circuit split on the protection afforded symbolic speech, using an approach different from all others, holding symbolic speech must present an “identifiable message to a reasonable observer” to ensure constitutional covering. And, in applying these novel principles to Cressman’s compelled speech claim, the Tenth Circuit contravened precedent further in holding Cressman’s speech was not compelled because his objection did not match the inference a “reasonable observer” would draw about the image.

The question presented is whether the State can compel citizens to display images that are objectionable to them?

Lower court materials here.

United States v. Bryant Cert Stage Briefs

Matthew L.M. Fletcher1 Comment

Here:

Cert Petition

NCAI Amicus Brief in Support

Opposition Brief

US Cert Stage Reply

Lower court materials here (en banc), and here (panel).

Zepeda v. United States Cert Petition

Matthew L.M. Fletcher1 Comment

Here:

Zepeda Cert Petition

Questions presented:

The Indian Major Crimes Act, 18 U.S.C. § 1153, makes it a federal crime for an “Indian” to commit any one of thirteen enumerated acts in “Indian country.” In this case, the en banc Ninth Circuit held that an element of the offense in prosecutions under this statute is proof that the defendant has “Indian blood,” whether or not that blood tie is to a federally recognized tribe. The question presented is:
Whether, as construed by the Ninth Circuit, Section 1153 impermissibly discriminates on the basis of race.
Opinion here. En banc materials here, here, and here. Panel materials and other materials here, here, and here.

Supreme Court Petition Involving NAGPRA, Rule 19, and Tribal Immunity

Matthew L.M. Fletcher1 Comment

Here is the petition in White v. Regents of the University of California:

White Cert Petition

Questions presented:

The Native American Graves Protection and Repatriation Act (NAGPRA), which governs repatriation of human remains to Native American tribes, contains an enforcement provision that states, “The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter and shall have the authority to issue such orders as may be necessary to enforce the provisions of this chapter.” 25 U.S.C. § 3013. Over a strong dissent, a divided Ninth Circuit panel held that a party can prevent judicial review of controversial repatriation decisions by claiming a tribe is a “required party” under Rule 19 of the Federal Rules of Civil Procedure, if the tribe invokes tribal immunity. The questions presented are:
1. Whether Rule 19 of the Federal Rules of Civil Procedure mandates that a district court dismiss any case in which a Native American tribe with immunity is deemed to be a “required party.”
2. Whether tribal immunity extends to cases where Rule 19 is the only basis for adding a tribe, no relief against the tribe is sought, and no other forum can issue a binding order on the dispute; and if so, whether Congress abrogated tribal immunity as a defense to claims arising under NAGPRA.
Lower court materials here.
UPDATE (1/4/16): Anthropologists Amicus Brief

Wasatch County v. Ute Indian Tribe Cert Petition

Matthew L.M. Fletcher1 Comment

Here:

Cert Petition

Question presented:

In Hagen v. Utah, 510 U.S. 399, 409 (1994), this Court granted certiorari “to resolve the direct conflict between” the Tenth Circuit and the Utah Supreme Court over whether Congress has diminished the lands of the Uintah Valley and Uncompaghre Indian Reservation. This Court adopted the state court’s holding that the lands have been diminished, such that those lands are not Indian Country.
The Tenth Circuit is not giving up, however. It has held that its prior precedent justifies expressly refusing to follow Hagen,except to the limited extent absolutely compelled with respect to the precise facts of this Court’s ruling. In this case, the Tenth Circuit went substantially further still and held that its earlier (admittedly erroneous) holding that the reservation has not been diminished binds even petitioner Wasatch County, which was not a party to any of the prior litigation. Despite this Court’s determination to resolve the conflict between the federal and state courts in Hagen, that conflict continues to persist.
The Question Presented is:
Did the court of appeals err in defying this Court’s decision in Hagen v. Utah and enjoining a proper state court prosecution of a tribal member on lands that this Court has held have been diminished by Congress?
Lower court materials here.

NCAI Amicus Brief in United States v. Bryant

Sarah M Donnelly

Brief in Support of Petitioner here.

U.S. cert petition previously posted here.