cert petition

Pechanga Disenrollments Cert Opposition

Matthew L.M. Fletcher

Here: Macarro Cert Opp

The petition is here. Lower court materials are here.

Hogan v. Kaltag Tribal Council — A Petition to Watch — Corrected

Matthew L.M. Fletcher1 Comment

From SCOTUSBlog:

Title: Hogan v. Kaltag Tribal Council
Docket: 09-960
Issue: Whether the hundreds of Indian tribes throughout the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a [member] and then to compel the State to give full faith and credit to the decrees entered in those proceedings.

Continue reading →

Two Indian Law Cases are “Petitions to Watch”

Matthew L.M. Fletcher1 Comment

Keep an eye out for Monday’s announcement of new orders in pending petitions, and expect at least one Indian law case to be granted. My money’s on the Tohono O’odham case.

From SCOTUS Blog:

Title: United States v. Tohono O’odham Nation
Docket: 09-846
Issue: Whether 28 U.S.C. § 1500 — which precludes jurisdiction by the Court of Federal Claims (CFC) over ”any claim for or in respect to which the plaintiff has any suit or process against the United States” or its agents “pending in any other court” – deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.

Title: Wolfchild v. United States; Zephier v. United States
Docket: 09-579; 09-580
Issues: (1) Whether federal court subject matter jurisdiction exists over Native American beneficiary claims of purported federal government violations of the 1934 Indian Reorganization Act or other applicable federal statutes when post-1934 IRA non-tribal community governments are involved; (2) whether the Federal Circuit’s holding of “statutory use restrictions” in congressional appropriation acts establishing statutory obligations on the United States, but no “trust,” departs from applicable statutory interpretation and trust principles; and (3) whether the Federal Circuit’s holding that a 1980 Congressional Act terminated a trust was impermissible given that the court failed to consider the 1934 IRA’s extension of all Native American trusts under 25 U.S.C. § 462 and failed to apply the “clear and unambiguous requirement” for a trust termination act.

Wolfchild Petition Stage Briefing Complete

Matthew L.M. Fletcher1 Comment

Here is the petitioner’s reply: Wolfchild Reply in Support of Petition

Earlier briefs are here.

Arctic Slope Native Assn. v. Sebelius Cert Petition

Matthew L.M. Fletcher1 Comment

Here: Arctic Slope Cert Petition (and with the Appendix — Arctic Slope Cert Pet & App)

And the Federal Circuit decision: Federal Circuit Opinion

Question presented (I’m so happy when there’s only one):

Whether, contrary to the decisions of three other Circuits and this Court’s precedents, the Federal Circuit erred in holding that the filing of a class action against the government does not toll the deadline for asserted class members to exhaust their administrative remedies.

North County Community Alliance, Inc. v. Salazar Petition Stage Filing Complete

Matthew L.M. Fletcher

Here is the petition (previously posted).

Here is the cert opposition from the Solicitor General.

And here is the reply: North County Community Alliance Reply to Cert Opposition

This petition is slated for the April 16, 2010 Conference.

Jeffredo v. Macarro Cert Petition re: Pechanga Disenrollments

Matthew L.M. Fletcher2 Comments

Here: Jeffredo Cert Petition

Incidentally, a few days after the petitioners filed, the Ninth Circuit panel adopted an amended opinion (here).

Lower court materials are here.

Questions presented:

1. Is the Writ of Habeas Corpus under the Indian Civil Rights Act limited solely to tribal criminal proceedings instead of also including tribal civil proceedings which result in the disenrollment of life-long tribal citizens?

2. Does the combination of “disenrollment,” which is the stripping away of Appellants’ life-long tribal citizenship and the current and potential restrictions placed on Appellants, constitute a severe restraint on their liberty so as to satisfy the “detention” requirement of Section 1303 of the Indian Civil Rights Act?

3. Does the disenrollment of life-long tribal members, by itself, constitute a severe restraint of liberty so as to satisfy the “detention” requirement of the Indian Civil Rights Act?

4. Did the Appellants exhaust their tribal remedies by going through every Pechanga Tribal appeal proceeding available to contest their disenrollment?

I don’t see how this is certworthy. There’s no split in authority alleged by the petitioners (they didn’t even try to assert a split with the Second Circuit which decided a somewhat similar case (Poodry) years ago). I imagine the Supreme Court one day will reconsider the National Farmers Union tribal court exhaustion doctrine but this doesn’t seem to be a very good vehicle for that because it’s not a tribal court jurisdiction case at the heart of the doctrine. Plus, it’s an internal tribal matter with no national importance whatsoever (other than the side-show of Indian gaming wealth).

Finally, despite the dissent from District Court Judge Wilkens, I don’t think the Roberts Court is inclined to expand habeas rights in any way, let alone to benefit Indian people in this way. As Justice Holmes told Justice Brandeis, the Supreme Court is not there to do justice.

Tohono O’odham Nation Cert Opposition

Matthew L.M. Fletcher

In United States v. Tohono O’odham Nation (No. 09-846) … here: TON Cert Opp

The cert petition and questions presented are here.

Fully expect this to show up in the SCOTUSblog petitions to watch in a few weeks.

Government’s Cert Opposition Brief in Wolfchild/Zephier

Matthew L.M. Fletcher

Here: US Cert Opposition

This petition (materials in Wolfchild here, and in Zephier here) has gotten some attention based on the fact that the United States originally chose not to file a cert opp brief, but the Supreme Court called for a response, indicating at least the possibility that the Court is interested. Still fairly remote though….

Hogan v. Kaltag Cert Petition News

Matthew L.M. Fletcher1 Comment

From Indianz. The comments of Sen. Bill Wielechowsk read like a cert pool memo (and agreeably so):

“The facts in Kaltag are this,” said Sen. Bill Wielechowski (D), The Anchorage Daily News reported. “You had a Mom who was convicted of murder and was a drinker. You had a Dad who wanted nothing to do with the child. You had the Kaltag tribe that took custody of the child, adopted her to residents who lived in Huslia. All participants consented to the tribal court doing this, all were Native, no one raised any concerns about the due process provided by the tribal court. The child is 10 years old, happy and healthy with the family, and the state comes in and wants to stop this.”