cert petition

Briones v. U.S. Cert Petition

Matthew L.M. Fletcher

This involves crimes committed on and around the Gila River Indian Community, prosecuted under the Major Crimes Act. Here is the petition: Briones v US Cert Petition.

It looks like a pair of interesting questions. There may be a decent shot for review if the petition’s representations are correct.

Questions presented:

1. Whether the District Court and the Circuit Court erred in admitting the out-of-court statements of Arlo Eschief to the jury by the prosecution through testimony of a law enforcement agent constituting hearsay testimony in violation of the Sixth Amendment Confrontation Clause?

2. Whether the District Court had the jurisdiction under the General Crimes Act 18 U.S.C. § 1152 and the Major Crimes Act 18 U.S.C. § 1153, to apply federal statutes of crimes on Indian land not expressly authorized by Federal statute?

Cert Petition in Oglala Sioux Tribe v. U.S. Army Corps

Matthew L.M. Fletcher

Here: Oglala Sioux Tribe v. US Army Corps Cert Petition

Lower court materials here and here.

Questions presented:

1. Does the 5-year statute of limitations of Section 12 of the Indian Claims Commission Act of 1946 (“ICCA”), 60 Stat. 1049, 1052 (formerly codified at 25 U.S.C. § 70k (repealed)), which applies only to claims accruing no later than August 13, 1946, bar federal court jurisdiction over an Indian tribe’s claim that the Government breached its trust responsibility to consult with the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe’s cultural and historic heritage located on federal lands within the tribe’s aboriginal territory, specifically before making the transfers of federal lands authorized by the Water Resources Development Act of August 17, 1999, Pub. L. 106-53, Title VI, §§ 601-609, 113 Stat. 269 (“WRDA”), where the tribe’s breach-of-duty-to-consult claim does not involve either an historical land claim for money damages or the revision of treaties, contracts or agreements between the tribe and the United States, and where the breach occurred no earlier than 2002 when the WRDA transfers began?

2. Does an Indian tribe have standing to pursue its claim that the Government breached its trust responsibility to consult with the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe’s cultural and historic heritage located on lands within the tribe’s aboriginal territory, where the merit of the tribe’s non-frivolous contention, that it has a legally protected interest in the tribe’s aboriginal territory based on the Government’s trust relationship with the Indian tribes, must be assumed in assessing the tribe’s standing to sue? Continue reading →

Cert Opposition in Rosenberg v. Hualapai

Matthew L.M. Fletcher

Here: Hualapai Cert Opp

Cert petition is here.

Dickson v. San Juan County Cert Petition

Matthew L.M. Fletcher

Dickson v. San Juan County Cert Petition

Lower court materials here.

Questions presented are too long for this blog to reproduce.

Continue reading →

Davis v. Minnesota Cert Petition

Matthew L.M. Fletcher3 Comments

Interesting case and petition, though I would not have described the Minnesota jurisdictional rule as “aparteid.”

Davis v. Minnesota Cert Petition

Lower court decision here.

Questions presented:

Has the State of Minnesota infringed upon the right to tribal self-government of the Minnesota Chippewa Tribe?

Is the assertion of state civil regulatory authority in this matter preempted under Public Law 280 exceptions?

Continue reading →

Attea v. N.Y. Dept. of Taxation Cert Petition

Matthew L.M. Fletcher

Here: Attea v. Dept. of Taxation Cert Petition.

Questions presented:

1. Whether New York State usurps the United States Congress’ plenary power to regulate commerce with the Indian Tribes under Article 1, Section 8, Clause 3 of the US Constitution by imposing a direct tax and onerous record keeping burdens directly on a Federally Licensed Indian Trader.

2. Whether, if Indian Trader income is state taxable, New York State violates a nonresident’s Due Process rights and the Commerce Clause by taxing an indiscriminate amount of a nonresident’s income solely because there is insufficient proof to show the amount of income allocable to out of State sources.

Lower court opinion here.

United States Files Cert Petition in Supreme Court re: Procedure in Indian Trust Cases

Matthew L.M. Fletcher3 Comments

Here is the petition: United States v Tohono O’odham Nation Cert Petition.

Suffice it to say that the chances of this petition being granted are pretty good — about two-thirds (or more) of all of the United States’ cert petitions are granted.

Here are the questions presented:

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction 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.” The question presented is:

Whether 28 U.S.C. 1500 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.

Here are the lower court materials. And a decision in a similar case.

Amicus Brief Supporting Cert Petition in Wolfchild v. United States

Matthew L.M. Fletcher

Here: Historic Shingle Springs Miwok Amicus Brief

Other materials in this case are here.

Grand River Enterprises Files Cert Petition in Tobacco Case

Matthew L.M. Fletcher

Here is the cert petition in Grand River Enterprises Six Nations v. Beebe: Grand River Enterprises Cert Petition

And the lower court opinion: CA8 Opinion

The questions presented:

1. In 2002, Petitioner, Grand River Enterprises Six Nations, Ltd. (“Grand River”), commenced a lawsuit against the Attorneys General of thirty-one (31) States in federal district court in New York, challenging model legislation adopted by their respective States to implement the Tobacco Master Settlement Agreement (“MSA”). The Second Circuit Court of Appeals has twice held that Petitioner’s antitrust and Commerce Clause challenges to the model legislation state a claim for relief under Fed. R. Civ. P. 12(b)(6). Although the State of Arkansas adopted the same model legislation, the Arkansas Attorney General was not included in that lawsuit, because, at that time, the State of Arkansas had not enforced, nor threatened enforcement of, the model legislation against Petitioner. In this later-filed action against the Arkansas Attorney General, the Court of Appeals for the Eighth Circuit, with one Judge dissenting, has held that challenges to the model legislation in Arkansas – challenges identical to those permitted by the Second Circuit – fail to state a claim. As such, the question presented is whether, despite the decisions of the Second Circuit holding and acknowledging that Petitioner has stated a claim pursuant to Fed. R. Civ. P. 12(b)(6) that model legislation enacted by thirty-one (31) States to implement the MSA violates the Sherman Act, the Eighth Circuit erred in affirming dismissal of Petitioner’s Sherman Act challenge to the same model legislation enacted by the State of Arkansas, pursuant to Fed. R. Civ. P. 12(b)(6).

2. Whether, despite the decisions of the Second Circuit holding and acknowledging that Petitioner has stated a claim pursuant to Fed. R. Civ. P. 12(b)(6) that model legislation enacted by thirty-one (31) States to implement the MSAviolates the Commerce Clause, the Eighth Circuit erred in affirming dismissal pursuant to Fed. R. Civ. P. 12(b)(6) of Petitioner’s Commerce Clause challenge to the same model legislation enacted by the State of Arkansas.

Continue reading →

Cert Petition Filed over Nooksack Casino

Matthew L.M. Fletcher1 Comment

Here is the petition in North Country Community Alliance v. Salazar: North County Community Alliance Cert Petition

Lower court materials are here.

The questions presented:

Must the National Indian Gaming Commission establish its jurisdiction over a tribe’s potential gaming sites, by determining that such sites qualify as “Indian lands”, before approving the tribe’s gaming ordinance?

Does the National Indian Gaming Commission act ultra vires when it approves a tribal gaming ordinance which allows construction and operation of a gaming facility on land which is never determined by the Commission to be “Indian lands”?

There doesn’t appear to be any reason to grant cert in this case. By the petitioner’s own admission, there is no circuit split. This is a case of first impression before the Court, and that usually means a death knell for the petition.