cert petition

Wisconsin v. Ho-Chunk Nation Cert Petition re: e-Poker

Matthew L.M. Fletcher2 Comments

Here:

Wisconsin v. Ho-Chunk Nation Cert Petition

Question presented:

The Indian Gaming Regulatory Act (IGRA) defines authorized Indian gaming as Class I, Class II, or Class III. 25 U.S.C. § 2703. Unlike Class III gaming, Class II is not subject to tribal-state gaming compacts. 25 U.S.C. § 2710. Class II gaming includes card games that “are not explicitly prohibited by the laws of the State.” 25 U.S.C. § 2703(7)(A)(ii)(II). Wisconsin’s Constitution prohibits the state legislature from authorizing any form of gambling, including poker. See Wis. Const., art. IV, § 24(1).
Prior to Congress enacting IGRA, the Court held that a state cannot enforce its gambling laws on Indian land when its policy toward gambling is civil and regulatory, rather than criminal and prohibitory. California v. Cabazon Band of Mission Indians,480 U.S. 202, 210 (1987). Here, the Seventh Circuit applied Cabazon to interpret IGRA. It concluded that the electronic poker offered by the Ho-Chunk Nation is Class II, not Class III, when Wisconsin’s policy toward gambling and poker is regulatory, rather than prohibitory. Under this approach, the Nation can offer e-poker in Madison, Wisconsin despite the parties’ compact, which does not authorize Class III gaming in Madison.
The question presented is:
Whether Cabazon’s “regulatory/prohibitory” test that pre-dates IGRA applies to determine whether a game is Class II or Class III gaming under IGRA?

Lower court materials here.

Jensen v. EXC Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Jensen Cert Petition

Questions presented:

1. Whether federal courts are free to ignore congressionally confirmed Indian treaty rights that impliedly reserve tribal jurisdiction over nonmember conduct within an Indian reservation, thereby effecting an impermissible judicial abrogation of those treaty rights.
2. Whether federal courts may disregard the Supreme Court’s multifactor analysis for determining the status of a roadway existing on tribal trust land when deciding if an Indian tribe has inherent sovereign jurisdiction to adjudicate a collision occurring on that roadway between a tribally regulated tour bus and a passenger vehicle carrying tribal members.
3. Whether federal courts may decline to apply the consensual relationship exception of Montana v. United States, 450 U.S. 544 (1981), because nonmember conduct occurred on land deemed to be the equivalent of non-Indian fee land, where (a) the Supreme Court has indicated that Montana’s consensual relationship exception can justify tribal jurisdiction over nonmember conduct occurring on non-Indian fee land or its equivalent, and (b) there exists a consensual relationship of the qualifying kind between the tribe and the nonmembers.
4. Whether federal courts may deny that an Indian tribe has inherent civil jurisdiction, pursuant to the second Montana exception, over nonmembers’ commercial touring of tribal lands that results in a fatal tour bus/auto collision where (a) the nonmembers’ conduct implicates the tribe’s interests in governing itself, controlling internal relations, and superintending land use, and (b) the impact of the commercial touring activity, unconstrained by tribal regulatory authority, is demonstrably serious and imperils the tribe’s sovereign interests.

Lower court materials here.

Hobia Cert Opposition Brief

Matthew L.M. Fletcher

Here:

Hobia Cert Opp

Cert petition here.

Torres v. Santa Ynez Band of Chumash Indians Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Cert Petition

Questions presented:

1. Was Petitioner denied due process of law when the Indian Tribal Chairman Armenta filed a false claim in Bankruptcy as part of a long pattern and campaign of harassment against Petitioner and the Bankruptcy Court refused to impose sanctions, simply because she believed she could not find grounds for sanctions because much of the pattern of the ultra vires conduct of Chairman Armenta did not occur in her court?
2. Has the recent decisions of this court in Bay Mills Indian Community, 572 U.S. ___, 134 S.Ct. 2024 and the Ninth Circuit court of appeals recent case in Maxwell v. County of San Diego, 708 F.3d 1075 (9th Cir. 2013) expanded the liability of tribal officers engaging in unlawful and abusive acts while purporting to do so on behalf of the Indian tribe and who then seek to invoke the tribes sovereign immunity to evade liability?
3. Even though the sanction motion had to be brought on its face, against the tribe (who waived tribal immunity in the bankruptcy case), the court was authorized in its inherent jurisdiction to impose sanctions against the improper actions of chairman Armenta even though claimed to have been done on behalf of the tribe.

Ninth Circuit materials:

CA9 Memorandum Order

Answer Brief

Torres Opening Brief

Torres Reply

Amicus Briefs in Support of Cert Petition in Sac & Fox Nation v. Borough of Jim Thorpe

Matthew L.M. Fletcher

Here:

15-07-01 Members of Congress Amicus Brief (Sac & Fox Nation v. Borough, No. 14-1419)

NCAI Amicus Brief

15-07-02 Religious Groups Amicus Brief (Sac & Fox Nation v. Borough, No. 14-1419)

15-07-02 Scholars Amicus Brief (Sac & Fox Nation v. Borough of Jim Thorpe, No. 14-1419)

Petition is here.

SCOTUS Grants Cert in Menominee Tribe v. United States

Matthew L.M. Fletcher

Here is the order list. From the order list:

The petition for a writ of certiorari is granted limited to the following question: Whether the D. C. Circuit misapplied this Court’s Holland decision when it ruled that the Tribe was not entitled to equitable tolling of the statute of limitations for filing of Indian Self-Determination Act claims under the Contract Disputes Act?

Cert stage briefs are here and here.

Supreme Court Grants Cert in Dollar General

Kate Fort2 Comments

Despite the SG’s brief recommending otherwise–order list here.

Previous coverage here.

From the original cert petition by Dollar General:

In this case, a divided panel of the Fifth Circuit held that tribal courts do have that jurisdiction. Five judges dissented from the denial of rehearing en banc. The case accordingly presents the issue the Court left open in Hicks and the Question the Court granted certiorari to decide in Plains Commerce:

Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members?

SCOTUS Holds Dollar General v. Mississippi Choctaw

Matthew L.M. Fletcher

Here is today’s order list.

The Dollar General v. Mississippi Band of Choctaw Indians cert petition was scheduled for the Court’s Conference last Friday. The Court took no action on the petition. That could mean many things or nothing. It could mean the Court is taking one last look before granting the petition. It could mean the Court is looking at denying the petition but one or more Justices has asked the rest of the Court to wait, or for time to write a dissent on the denial of the cert petition. The fact that the United States has recommended a denial strongly weighs against a grant, but the fact that the Court did not immediately denies cert somewhat mitigates the government’s position. We’ll see in next week or the coming weeks.

The cert stage briefs can be accessed here.

Sac and Fox Nation v. Borough of Jim Thorpe Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Thorpe Petition and Appendix (00059355)

Question presented:

The Native American Graves Protection and Repatriation Act (NAGPRA) applies to “any” institution or state or local government agency that receives federal funds and “has possession of, or control over,” Native American human remains. The Act requires these covered entities to inventory those remains and, at the request of Native American tribes or lineal descendants, to return them.

The question presented is whether the absurdity doctrine allows courts to exempt otherwise covered entities from NAGPRA based on how the entity acquired the Native American remains.

Lower court materials here.

News coverage here. Thanks to MKN.

United States Recommends Certiorari Grant in Menominee Tribe v. United States

Matthew L.M. Fletcher2 Comments

Here is the government’s brief:

US cert response brief

An excerpt:

The court of appeals correctly held that neither the Tribe’s erroneous prediction of the outcome of litigation, nor its expectation that the government would deny its administrative claims, warrants equitable tolling of the CDA’s six-year limitations period. That decision, however, squarely conflicts with the Federal Circuit’s decision in Arctic Slope Native Ass’n v. Sebelius, 699 F .3d 1289 (2012), which found tolling appropriate on materially similar facts. In the government’s view, certiorari is warranted.

Cert petition is here.

Lower court materials here.