cert petition – Page 38

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”).

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.

Lower court materials here.

Zephier v. United States & Wolfchild v. United States Cert Petitions

January 14, 2014January 13, 2014Matthew L.M. Fletcher4 Comments

Here:

Wolfchild v US Cert Petition

Zephier v US Cert Petition

Wolfchild questions presented:

1. Whether the court of appeals interpretations of statutes specific to the Mdewakanton Band — 1863 Acts, 1888-1890 Acts and 1980 Act: (a) contradict Tohono O’Odham Nation because the court of appeals failed to appreciate that the U.S. Court of Federal Claims (CFC) is to provide a judicial forum for most non-tort requests for significant monetary relief against the United States; (b) contradict Nevada v. Hicks, because the court of appeals opinions, including the Eighth Circuit opinion in Smith v. Babbitt, essentially refer the Mdewakanton Band’s federal claims to tribal courts which lack jurisdiction; (c) contradict Mitchell I, Mitchell II, White Mountain Apache, and Navajo Nation because the court of appeals misinterpreted statutory trust and other legal obligations and failed to properly apply the money-mandating duty requirement; (d) conflict with the First Circuit opinion in Passamaquoddy Tribe because the court of appeals failed to apply the “plain and unambiguous” requirement to the 1980 Act for the purported termination of the Mdewakanton Band and its statutory property rights; and (e) contradict Carcieri because the court of appeals treated the three non-tribal communities as sovereign historical tribes when they are not.

2. Whether the court of appeals’ interpretation of statutes general to American Indians: (a) contradict Oneida I and Oneida II and their progeny because the court of appeals failed to properly interpret the Indian Nonintercourse Act to require Congressional authorization prior to the purported termination of the Mdewakanton Band’s tribal statutory property rights; (b) contradict Carcieri and the 1934 Indian Reorganization Act (IRA) because the court of appeals deemed the purchased IRA lands to be held exclusively in trust for the three post-1934 non-tribal communities; and (c) misinterpreted the six-year statute of limitations and the Indian Trust Accounting Statute (ITAS) to bar the Mdewakanton Band’s monetary claims.

3. Whether summary judgment should have been granted to petitioners on the pre-1980 and post-1980 statutory fund claims and the statutory land claim.

Zephier questions presented:

I. Whether the Federal Circuit’s 2013 holding that a February 16, 1863 Act of Congress, providing that “the Secretary of Interior is hereby authorized to set apart of the public lands . . . eighty acres in severalty” to loyal Mdewakanton Indian individuals, is “too discretionary to support a viable claim,” thereby conflicts with this Court’s and other precedents holding that power given to public officers in permissive form statutory language, but involving individual property rights calling for its exercise, the language used is “in fact peremptory” and money-mandating?

II. Whether the Panel failed to recognize the trust nature of the February 1863 Act in rejecting Petitioners’ “two basic claims” and thus issued a determination that conflicts with a previous authoritative decision in Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), which found that the language of the Act of February 16, 1863, Section 9, ch. 37, 12 Stat. 652, “created an inheritable beneficial interest in the recipients of any land conveyed under the statute . . . [and] explicitly created a trust relationship” with the Federal Government?

III. Whether the Secretary of Interior’s 1865 actions “invoking the land-allocating authority of the two 1863 Acts” created an equitable estoppel against the Government, conflicting with the 2013 Panel’s conclusion that “those 1865 actions . . . cannot support a timely claim for relief?”

IV. Whether the Panel erred in failing to find an actionable violation of the 1851 and 1858 treaties between the Government and the loyal Mdewakanton by the Government’s failure to fully implement Section 9 of the Act of February 16, 1863?

Lower court materials here.

Grand Canyon Skywalk Petition in Conference Dec. 13

December 10, 2013Matthew L.M. Fletcher

Here.

Grand Canyon Skywalk Cert Petition on SCOTUSblog Watch List

December 2, 2013December 1, 2013Matthew L.M. Fletcher1 Comment

Here.

Alaska Seeks Supreme Court Review of Alaska Native Susbistence Rights under Katie John

November 5, 2013Matthew L.M. Fletcher2 Comments

Here is the petition in Alaska v. Jewell:

State of Alaska Petition and Appendix

Questions presented:

1. Whether the Ninth Circuit properly held—in conflict with this Court’s decisions—that the federal reserved water rights doctrine authorizes the unprecedented federal takeover of Alaska’s navigable waters sanctioned by the 1999 Rule.
2. Whether the Ninth Circuit properly proceeded on the premise—which also conflicts with this Court’s decisions—that ANILCA could be interpreted to federalize navigable waters at all given Congress’s silence on the Act’s application to navigable waters.

Lower court materials here.

Supreme Court Denies Cert in All Indian Law Cases (No News on Onondaga)

October 7, 2013Matthew L.M. Fletcher

Here.

The denial in Nebraska v. Elise M. is a big deal. The hold on Onondaga is interesting….

See our preview of the long conference here.

No Indian Law Grants from Supreme Court’s Long Conference

October 1, 2013Matthew L.M. Fletcher1 Comment

Here. But we won’t know for another several days whether the Indian law cases have been denied, held for a CVSG or other reason, or otherwise.

For TT’s analysis of the pending petitions, go here.

The October 2013 Term Long Conference: Indian Law Edition

September 30, 2013Matthew L.M. Fletcher2 Comments

There are a few Indian law petitions scheduled for disposition at the so-called long conference (which is today), where the Supreme Court Justices meet for the first time of the new Term to address cert petitions pending over the break. Thanks to SCOTUSblog for making links to the petitions easy.

SCOTUSblog’s Petitions to Watch lists these petitions:

Nebraska v. Elise M — Another ICWA case, this time involving the transfer of an ICWA case to tribal court. Wonder how, or if, the absolutely horrifying aftermath of the Adoptive Couple v. Baby Girl case will affect the decision on whether to review this matter.

Ring v. United States — not really an Indian law petition but does involve the challenge to the conviction of a former associate of Jack Abramoff.

Other petitions:

James L. v. Devin H. — a pro se ICWA petition. No chance for a grant here. Respondents waived the right to file an objection.

Matheson v. Washington Dept. of Revenue — No chance for a grant here, either. Part of a long-standing dispute between Indian smokeshop retailers and the state and the tribe. Respondents waived the right to file an objection.

Native Village of Eyak v. Pritzker — troubling case, with the CA9 apparently applying the wrong standard, or applying it it incorrectly. Two factors (three?) make the petition all but doomed — it’s simple error correction, which the Court shys away from, and the United States is opposing the petition. The third of course being tribal petitions are almost never granted (less than 1 percent).

Onondaga Nation v. New York — MSU’s ILPC participated in an amicus brief supportive of the Onondaga Nation at the CA2. The SCT has already denied similar petitions in land claims involving the Cayuga and Oneida Indian Nations. By the time the Onondaga land claims went to the CA2, Haudenosaunee land claims were being summarily dismissed as a matter of law. In spite of a whole class of claims being dismissed without any attention to the arguments about whether the state’s defenses were sufficient to justify dismissal, it seems pretty clear the Court will deny this one as well. If anything, however, the Court should be concerned that an American court has held that a class of claims that meets two criteria — (1) the plaintiffs are Indian tribes and (2) the claims are “disruptive” — are being summarily dismissed on their face. Fingers crossed for a summary reversal and remand….

Tonasket v. Sargent — Very little chance of a grant, as both petitioner and respondent are tribal. An intra-tribal dispute, rarely heard before the Supreme Court. However, there is an immunity issue, and the Court seems interested in those cases. Small, tiny possibility of a CVSG.