cert petition

Cavanaugh and Shavanaux Cert Petitions: Challenges to Use of Uncounseled Tribal Court Convictions in Federal Sentencing

Matthew L.M. Fletcher4 Comments

Here they are:

11-7379 Cavanaugh Cert Petition

11-7731 Shavanaux Cert Petition

The Cavanaugh question presented (Cavanaugh is now represented by Alex Reichart of United States v. Lara fame):

Whether the United States Constitution precludes the use of prior, uncounseled, tribal court misdemeanor convictions as predicate convictions to establish the habitual offender element of Section 117?

The Shavanaux question presented:

Does the Constitution prevent the use of a prior, uncounseled tribal court conviction that received a term of imprisonment to establish an element of the offense?

Here are the Cavanaugh lower court materials. And here are the Shavanaux lower court materials.

There is no circuit split, as far as we can tell. As such, it seems pretty unlikely these petitions will be granted. As we’ve said here, the Ninth Circuit does not appear to have weighed in on the question. Both petitions argue that the CA9 decision in United States v. Ant (882_F.2d_1389) furnishes the desired circuit split. It’s not clean, in that Ant’s tribal court conviction was a guilty plea used as a confession in federal court, not a conviction in a prior case used under Section 117 to establish facts for a habitual offender sentence enhancement. That said, who knows? We’ll see how the government handles it.

H/t Indianz.

 

Ute Mountain Ute Tribe Cert Petition in Natural Resources Tax Case

Matthew L.M. Fletcher

Here are the materials:

Final UMUT Petition for Certiorari

Appendix – Final

The questions presented are:

1. Does a state have the power to tax minerals production within the territorial boundaries of an Indian nation when the state provides no services in that location whatsoever, and where the tribe’s members cannot even vote in that state’s elections, amounting to taxation without representation?

2. Does Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989), permit New Mexico to tax oil and gas operators’ activities on Indian trust land even where, as here, “the State has nothing to do with the on-reservation activity,
save tax it”?

Tenth Circuit materials are here.

Gustafson v. Poitra Cert Petition

Matthew L.M. Fletcher3 Comments

Here is the petition (docket no. 11-701):

Gustafson v Poitra Cert Petition

Here are the questions presented:

1. Whether the State of North Dakota can supplant its own state case law, instead of federal law on jurisdictional disputes between state courts and tribal courts.
2. Whether the State of North Dakota has subject matter jurisdiction over a contract dispute between a nonmember individual and a member of an Indian tribe arising from the ownership and use of a building located on non-Indian owned fee land on an Indian reservation.
Here is the lower court opinion. Here is Gustafson’s lower court brief. And Poitra’s. Poitra was pro se.

Quick Commentary on SCOTUS, Patchak, and Corboy

Matthew L.M. Fletcher1 Comment

The Supreme Court granted cert in an Indian law case where the petition was filed in favor of tribal interests. This is, of course, the Patchak case involving the Department of Interior’s decision to take land into trust for gaming purposes on behalf of the Gun Lake Band. The last time the Court granted a petition filed on behalf of tribal interests was Cherokee Nation v. Leavitt, a case decided in 2005. The Court might also grant cert this Term in Ramah Navajo v. Salazar. Key to these successful cert petitions is the participation of the United States as supportive of the granting of the petition (if not the merits). In fact, every cert petition granted on behalf of tribal interests in recent memory has the support of the federal government, the last one (I believe) being Mississippi Band Choctaw v. Holyfield. Only Justice Scalia remains from that Court.

Key point: A cert petition on behalf of tribal interests has almost no chance of being granted by the Roberts Court unless the United States favors of the petition. Even then, as the Oneida and Cayuga land claims petitions demonstrates, it is a bit of a crap shoot.

Corboy v. Louie is more representative of where the Supreme Court is in relation to Indian law (though I suppose this isn’t an Indian law case, precisely). There’s nothing certworthy in this case whatsover (no split, nothing of national importance, a case brought by a private tax protester), but the Court is thinking carefully about this case perhaps because Indian law-type legal doctrines are outside of what Dean Getches called the “mainstream” of constitutional law, and should be reeled in. I have no doubt the OSG will recommend a denial because there simply is nothing worthy of Supreme Court review, but the fact this isn’t already a denied petition is telling.

Key point: A cert petition opposing tribal interests (regardless of its merit) receives more attention from the Supreme Court than a petition favoring tribal interests. End of story.

Cherokee Nation v. Ketchum Cert Petition — ICWA Membership Issue

Kate Fort3 Comments

The Cherokee Nation and Britney Jane Little Dove Nielson (child’s mother) have filed a petition for cert in the Supreme Court of the Tenth Circuit’s controversial decision to override the Cherokee Nation’s law establishing automatic temporary citizenship for all children born to Cherokee descendents when determining whether a child was an “Indian child” for the purposes of ICWA.

The Cert Petition is here. Previous materials on this case are here. Dean Leeds earlier commentary on this case is here. While the likelihood the Court grants cert is slim, this is an incredibly important case implicating not just ICWA determinations but tribal citizenship requirements, and the respect granted them in federal courts, in general.

Omaha Tribe v. StoreVisions Cert Opposition Brief

Matthew L.M. Fletcher

StoreVisions Cert Opp

SCT Relists Arctic Slope Native Assn. v. Sebelius Petition (Two Other Indian Law Petitions Denied)

Matthew L.M. Fletcher

We think. 🙂

Here is today’s order list.

The Supreme Court also denied cert in Evans v. Wapato Heritage and Begay v. United States, a case that the Ninth Circuit heard en banc.

Cert Opposition Brief in Corboy v. Louie (Challenge to Hawaii Homestead Lease Qualification)

Matthew L.M. Fletcher

Here.

Supreme Court May Grant Arctic Slope v. Sebelius Monday Morning

Matthew L.M. Fletcher

Scotusblog’s list of petitions to watch for last week’s conference is here.

The government recommended a hold in this case, arguing that the Ramah Navajo petition is a better vehicle. So, maybe the Court will resist this case, and hold it pending the decision in Ramah, or perhaps relist here and then consolidate it with Ramah.

Interior Cert Stage Reply Brief in Patchak

Matthew L.M. Fletcher

Here.