cert petition

SCOTUSBlog Petition of the Day: Constitutional Challenge to Tobacco Master Settlement Agreement

Matthew L.M. Fletcher

From SCOTUSblog:

Title: S&M Brands, Inc. v. Caldwell
Docket: 10-622
Issue(s): (1) Whether a binding agreement among multiple states and private companies is immunized from antitrust scrutiny under the state-action immunity doctrine of Parker v. Brown, 317 U.S. 341 (1943); and (2) whether a binding agreement among multiple states, with both intra- and interstate effects, violates the Compact Clause, Article I, § 10, cl. 3 of the United States Constitution, in the absence of congressional approval.

Certiorari-Stage Documents:

Seems worthwhile for Indian country to watch this case, even participate, since the tobacco MSA has had such a dramatic impact on Indian country business activities.

Cert Petition in API v. Sac and Fox Tribe (Iowa)

Matthew L.M. Fletcher

Here: API Cert Petition.

Questions presented:

The questions presented are:
(1) Do the federal agencies’ orders establish that the Walker Council had authority to control the casino and enter the contract, such that the Tribe’s claims must be arbitrated, not litigated in tribal court?
(2) Does the tribal court lack jurisdiction over the Tribe’s claims that petitioner committed tribal-law torts by entering into the casino, investigating the dissidents’ illegal operation of the casino, and receiving payments from the Walker Council?
Lower court materials here.

Glacier Electric Coop. Reply to Cert Opposition

Matthew L.M. Fletcher

Here: Glacier Elec Reply Brief

Cert Opposition in Glacier Elec. v. Estate of Sherburne

Matthew L.M. Fletcher

Here: Sherburne Cert Opp

Osage Nation Files Cert Petition in Indian Lands Case

Matthew L.M. Fletcher

Here are the early materials in Osage Nation v. Irby:

Osage cert petition

No. 10-__ Appendix Proof 10-21-10

Questions Presented:

In Solem v. Bartlett, 465 U.S. 463 (1984), this Court held that “only Congress can divest a reservation of its land and diminish its boundaries,” and Congress’s intent to do so must be “explicit[]” and “unequivocal,” id. at 470-471.

The Questions Presented are:
I. Whether, in determining whether Congress disestablished an Indian reservation, express statutory text, unequivocal legislative history, and the expert view of the Executive Branch are controlling, as the Second, Eighth, and Ninth Circuits have ruled, or whether, instead, other indicia external to the statutory text and federal government’s view, such as modern demographics, can override unambiguous statutory text, as the Tenth Circuit and Seventh Circuit have held.

II. Whether the court properly ruled that the Osage Nation’s reservation has been disestablished in the absence of unambiguous statutory direction and without obtaining or considering the position of the United States government.

Lower court materials here, here, and here.

Why Does the Supreme Court Grant Cert Petitions Almost Exclusively Against Tribal Interests?

Matthew L.M. Fletcher2 Comments

It’s a long enough answer, full of subjectivity, but worth discussion in the context of the United States v. Tohono O’odham Nation case, to be argued Nov. 1.

Why is this case so important? There’s no split in authority to be seen, and there hasn’t even been a judgment against the United States yet. So under Supreme Court Rule 10, we’re left with “importance” or  the “gross error” of the lower court.

The real question is whether the United States must defend two sets of claims filed in different courts. Money claims against the U.S. are normally filed in the Court of Federal Courts, and other claims can be filed in district court. TON filed a claim for equitable relief in DCT, and then a money damages claim in the CFC. The question is whether both claims are allowable under 28 USC 1500 (in other words, are they different claims).

So what’s so important about this case? Why now? Why not wait to see if the government loses a money judgment?

Perhaps the “importance” of money claims is the possible magnitude of them. Remember, the damages award in the Navajo Nation Peabody Coal claim was $600 million (and upwards of $1 billion after interest); the original Black Hills award was $17.5 million (now much more than that); and the Cobell award could have been billions (and the settlement was around $3 billion). Who else has repeated money claims of that magnitude against the federal government?

Indian tribes, that’s who.

SCOTUSBlog Lists U.S. v. Jicarilla Apache as a Petition of the Day

Matthew L.M. Fletcher1 Comment

From SCOTUSBlog:

Today’s second petition of the day is:

Title: United States v. Jicarilla Apache Nation
Docket: 10-382
Issue(s): Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.

Certiorari-Stage Documents:

Suquamish Reply Brief in Support of Its Cert Petition

Matthew L.M. Fletcher

Here: Suquamish Reply in Support of Cert Petition

ACLU Voting Rights Project Cert Petition in Cottier v. City of Martin

Matthew L.M. Fletcher

Here. Lower court materials here.

Questions presented:

1. Was the district court’s original finding that the plaintiffs had not established one of the threshold factors for a finding of vote dilution under Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, properly before the Eighth Circuit upon review of a superseding final judgment in the plaintiffs’ favor after remand from a prior panel?
2. Is statistical evidence necessary to prove legally significant racially polarized voting under Thornburg v. Gingles, 478 U.S. 30 (1986)?
3. Do minority voters have an equal opportunityto elect aldermen and alderwomen of their choice when the evidence shows that minority voters have had some success in electing their preferred candidates—but only in nonmunicipal elections, when “minority” voters constitute a majority of the electorate, or when their preferred candidates are white?

New Cert Petition re: Tribal Court Jurisdiction (Sorta)

Matthew L.M. Fletcher

Here is the petition in Glacier Electric Cooperative, Inc. v. The Estate of Scott Sherburne: Glacier Electric Cert Petition.

Questions presented:

[T]he question presented is whether preclusion of the issue of tribal subject matter jurisdiction to hear a case bars the federal courts from considering whether Respondents may enforce in tribal court the relief they were granted there – a substantial money judgment – despite the lack of due process at the trial.

The Ninth Circuit’s summary disposition is here.