cert petition

Cert Petition in Rosales v. United States

Matthew L.M. Fletcher

Here is the petition: Rosales Cert Petition

The unpublished Federal Circuit decision is here.

The questions presented are:

This Court holds that the Indian Reorganization Act (“IRA”), 25 U.S.C. §479, “limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934.” Carcieri v. Salazar (“Carcieri”), 129 S.Ct. 1058, 1061 (2009), now followed by the District of Columbia Circuit in Patchak v. Salazar (“Patchak”), No.09-5324,2011 WL 192495 (D.C. Cir. 2011).

Here, the Federal Circuit held in conflict with these decisions, that whether the tribe was under Federal jurisdiction in 1934 was irrelevant, in determining whether the tribe became a beneficial owner of Indian trust land. The questions presented are:

1. Must a court decide whether a tribe was under Federal jurisdiction in 1934, whenever a tribe claims an interest in Indian trust land adverse to a state or individual’s interest in that property?

2. Must a court decide whether a tribe was under Federal jurisdiction in 1934, when determining the timeliness of Petitioners’ Tucker Act claims that the tribe never became a beneficial owner of Indian trust land?

3. Must a court decide whether a tribe was under Federal jurisdiction in 1934, in determining whether the tribe was a required, but absent party, claiming an interest in Petitioners’ beneficial interest in trust property?

An excerpt from the lower court decision:

Continue reading →

EEOC Files Conditional Cross-Petition in Navajo Tribal Preference Case

Matthew L.M. Fletcher1 Comment

Here: EEOC Conditional Cross-Petition

The question presented:

Whether the Secretary of the Interior is a “required party,” within the meaning of Rule 19(a)(1) of the Federal Rules of Civil Procedure, to an action by the Equal Employment Opportunity Commission against a private employer, where the challenged conduct was undertaken pursuant to a federally approved mining lease between the employer and an Indian Tribe, but no federal agency is a party to the lease.

The cert petitions filed by Peabody Coal and the Navajo Nation are here.

Update in South Dakota v. Yankton Sioux Tribe Cert Petitions

Matthew L.M. Fletcher1 Comment

Yankton Sioux Tribe has filed two cert petitions of its own. The first is a conditional cross-petition in the South Dakota v. Yankton Sioux case — Yankton Cross-Petition.

The question presented there:

Whether the Yankton Sioux Reservation includes all lands within its original boundaries other than those the Tribe ceded to the United States for sale to non-Indians in the Act of 1894, ch. 290, 28 Stat. 286, 314-19.

The second is a cert petition captioned Yankton Sioux Tribe v. United States Army Corps of Engineers — Yankton Sioux v. US Army Corps Cert Petition.

The question presented there:

The court of appeals held in this case that land transfers by the United States Army Corps of Engineers to the State of South Dakota pursuant to the Water Resources Development Act of 1999 did not violate §§ 605(b)(3) and (c)(1)(B) of that Act because they did not include lands within the “external boundaries” of the Yankton Sioux Reservation. The petitions and conditional cross-petition for a writ of certiorari in Nos. 10-929, 10-931, and 10-932 concern the boundaries of that reservation. The question presented is whether to hold this petition and then dispose of it as appropriate in light of the Court’s disposition of those other petitions.

Note from Patricia Millett on the Developments in the Osage Case

Matthew L.M. Fletcher3 Comments

[Moved up from James Meggesto’s comment.]

A quick note from Patricia Millett – who has been handling the case for the Osage Nation at the Supreme Court level – for those readers that may be interested in the background and timing going forward. On March 5, 2010, the Tenth Circuit held that the Osage Nation’s reservation had been disestablished, and it did so in the acknowledged absence of any textual direction from Congress and despite recognition of the Reservation by the Executive Branch of the U.S. Government. After the Tenth Circuit denied rehearing, the Osage Nation filed a petition for certiorari with the Supreme Court seeking review of a conflict in the circuits concerning the proper mode of analyzing disestablishment questions. Today’s order from the Supreme Court calling for the views of the Solicitor General on the Nation’s petition is a significant development in the case because it signals that the Supreme Court is looking seriously at the petition, and the United States’ views on this important question will now be officially obtained for the first time in this case. Indeed, one might question whether, as a basic matter of separation of powers, a court could hold that a reservation has been disestablished without any express direction from Congress or obtaining the views of the United States government. Given the timing of the Court’s order, it is likely that the United States will file its brief in response to the Court’s order in May and the Court will act on the petition before the end of the Term in June.

Supreme Court Calls for the Views of the Solicitor General in the Osage Reservation Disestablishment Case

Matthew L.M. Fletcher1 Comment

Here is today’s order, with the Osage Nation v. Irby petition mentioned on page 2.

Cert stage briefs are here.

This is the sixth CVSG in an Indian law cases in the last two years.

Winnemucca Colony Council v. Wasson Cert Petition

Matthew L.M. Fletcher2 Comments

Here: Winnemucca Colony Council Cert Petition

Questions presented:

1. Whether the United States Federal District Court exceeded its powers by interjecting itself into the fray of competing tribal factions within a single tribal government to determine which faction shall have control over tribal treasury resources thereby imputing governmental control of the tribe to that faction in contradiction to policies of self-determination and self-governance under 25 U.S.C. § 450n and other individual sections of the Indian Self Determination Act.

2. Whether under 25 U.S.C. § 450b(l) the United States Court of Appeals for the Ninth Circuit erred in upholding the District Court’s Order awarding tribal funds to a faction unrecognized by the BIA but purporting to be the legitimate governing body of the tribe even though the faction was not democratically elected by eligible voters of the Indian community.

Lower court materials here.

 

Today’s Conference: Osage v. Irby (A Petition to Watch)

Matthew L.M. Fletcher

From SCOTUSblog:

Osage Nation v. Irby
Docket: 10-537
Issue(s): (1) Whether, in determining whether Congress “disestablished an Indian reservation,” pursuant to Solem v. Bartlett (1984), courts are limited to the statutory text, legislative history, and views of the Executive Branch or can instead also consider other external indicia; and (2) whether the lower court properly ruled that a Native American tribe’s reservation had been “disestablished.”

Certiorari stage documents:

 

Utilities Amicus Brief in Support of South Dakota et al. v. Yankton Cert Petitions

Matthew L.M. Fletcher

Here: Electric Cooperatives Amicus Brief in Support of Petition.

The cert petitions are here.

Peabody Coal and Navajo Nation File Cert Petitions against EEOC over Navajo Tribal Employment Preference

Matthew L.M. Fletcher3 Comments

Here is the Peabody Coal petition: Peabody Coal Cert Petition.

The question presented:

Where the EEOC contends that conduct required by a tribal coal mining lease provision mandated by the Secretary of the Interior violates Title VII of the Civil Rights Act of 1964, which statute expressly bars the EEOC from suing the Secretary to enforce Title VII, does Federal Rule of Civil Procedure 14 permit the coal mining lessee or the tribal lessor to implead the Secretary as a third-party defendant?

And here is the Navajo cert petition: Navajo Nation Cert Petition

The questions presented:

1. May the sovereign immunity of the United States and of a federally recognized Indian tribe, preserved in Title VII of the Civil Rights Act of 1964, be abrogated by application of Rules 14 and 19 of the Federal Rules of Civil Procedure?

2. May a court use Rule 14 to permit or require a party to implead the Secretary of the Interior in a case where the applicable statute does not confer a right of contribution?

Lower court materials here.

And here is Dr. Ray Austin’s fine history of the tribal law in question. And my paper from 7 years ago on Rule 19 and Indian tribes. [Read my paper and you’ll know how this is going to turn out.]

Osage Reply Brief in Cert Stage

Matthew L.M. Fletcher

Here: Osage Cert Reply