cert petition

Rosenberg v. Hualapai Indian Nation Cert Petition

Matthew L.M. Fletcher1 Comment

Here is the cert petition in Rosenberg v. Hualapai Indian Nation (No. 09-742): Rosenberg Cert Petition.

No chance for a grant here. No circuit split. Nothing important for the SCT to decide, especially since they denied cert in the dram shop cases earlier this year. And the petition merely asks the Court to reverse itself, without really stating why. Oh, and the plaintiff had recourse to tribal court, so there isn’t a “no forum” problem.

Lower court materials are here.

The questions presented:

1. Does the sovereign immunity of an Indian tribe extend to off-Indian County (extra-territorial), tortuous conduct?

a. Does Congress, and Congress alone, have the authority to establish the boundaries of tribal sovereign immunity, a judicially-created doctrine, or may this Court define its outer boundaries, as this Court has suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700 (1998)?

b. Is tribal sovereign immunity broader than the immunity provided to foreign sovereign nations?

2. Does a tribe waive its sovereign immunity by engaging in conduct that would lead a reasonable person to believe that he or she might have recourse in a court of competent jurisdiction for the negligence acts of the tribe?

Cobell Plaintiffs File Cert Petition

Matthew L.M. Fletcher1 Comment

From BLT (miigwetch to A.K.) (cert petition, with appendices, is here):

The lawyers in the long-running Indian trust litigation in Washington find themselves in an odd position: filing a petition for certiorari just two weeks after the sides announced a $1.41 billion settlement to end the case.

This week, lawyers for lead plaintiff Elouise Cobell filed their petition with the U.S. Supreme Court to challenge a ruling in July in the U.S. Court of Appeals for the D.C. Circuit. The settlement is not final and so the lawyers are keeping open their options.

The appeals court ruling erased a $455.6 million award—restitution for the government’s breach of trust in managing billions of dollars flowing from natural resources tied to Indian lands. The court also dismissed a finding that an historical accounting of individual Indian trust accounts is impossible. A three-judge panel said the government has no obligation to conduct a complete historical accounting—just “the best accounting possible” with whatever money Congress decides to appropriate.

“As a result of that holding, the government is responsible only for whatever accounting it chooses to pay for, and Indian beneficiaries will never know what happened to billions of dollars of their assets that the United States purportedly held in trust for them subject to the most exacting fiduciary standards,” Cobell’s lawyers, including D.C. solo practitioner Dennis Gingold and a Kilpatrick Stockton team, said in their petition for certiorari. “The court of appeals’ holding turns traditional, controlling trust law on its head, and is akin to giving the fox sole discretion to determine the security features of the henhouse.”

Cobell’s lawyers, who include Kilpatrick Stockton partner Keith Harper, said in a footnote on the first page of their petition that the plaintiffs and the government executed a settlement Dec. 7 that is contingent on legislation that authorizes payment and, in addition, final approval from the presiding trial court judge.

Continue reading →

Oglala Sioux Tribe Amicus Brief in Wolfchild/Zephier Case

Matthew L.M. Fletcher

Here is that brief, drafted by the legendary Mario Gonzales — Oglala Sioux Tribe Amicus Brief

Cert Petition in In re Shinnecock Smokeshop

Matthew L.M. Fletcher

So much Shinnecock news lately … In re Shinnecock Smokeshop Cert Petition

An excerpt:

The TTAB affirmed the EA’s refusal to register Petitioner’s marks on different grounds than that relied upon by the EA in the Final Office Action. The Federal Circuit affirmed. Petitioner showed below that his Tribe is obviously not a “Person” or “Institution,” and a refusal to register under Section 2(a) of the Trademark Act, under either ground was error. Further, Petitioner presented a documented prima faciecase of discriminatory pattern of practice of the USPTO in previously, and even presently, granting trademark registrations to non-Native Americans with similarly situated marks.

Supreme Court Denies Cert in Benally

Matthew L.M. Fletcher

The Supreme Court denied cert in Benally v. United States.

Indian Law-Related Cert Petitions under Review Today at Supreme Court

Matthew L.M. Fletcher

The Supreme Court will decide whether or not to grant cert in two Indian law-related cases, Benally v. United States (No. 09-5429), and Pyke v. Cuomo (No. 09-242). Benally may have a reasonable chance of being granted (though SCOTUSBlog does not list it as a petition to watch), if for no other reason that some amici filed briefs in support of the petition.

Zephier v. United States Cert Petition re: Mdewakanton Sioux Claims

Matthew L.M. Fletcher

Here — Zephier v United States Cert Petition

Questions presented:

1. Whether the Federal Circuit Court of Appeals erred in failing to recognize the existence of a trust corpus in property and beneficiary rights for and on behalf of the lineal descendants of the Loyal Mdewakantons, from the March 3, 1863 Act and that the existing trust corpus was intended to be implemented and enhanced by the subsequent legislation found in the Appropriations Acts of 1888, 1889, 1890 and 1980.

2. Whether the Federal Circuit Court of Appeals erred in not applying the doctrine of judicial estoppel as set forth in New Hampshire v. Maine, 532 U.S. 742 (2001) and thus allowed the United States to argue the existence of a trust and obtain a favorable result in the Eighth Circuit, Cermak v. United States, 478 F.3d 953 (8th Cir. 2007) and to argue the lack of a trust and obtain a favorable result in the Federal Circuit, Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), thereby creating a split in the Circuits.

The Wolfchild cert petition is here.

Harvest Inst. Freedmen Federation v. United States Cert Petition

Matthew L.M. Fletcher1 Comment

This has no chance of being granted, but it’s interesting anyway — Harvest Institute Freedmen Federation v United States Cert Petition.

The question presented:

The claims in this action were brought on behalf of representatives of persons formerly held in bondage by the so-called “Five Civilized” Indian Tribes, hereinafter “Freedmen.” The Freedmen were beneficiaries of the various trusts established between the Five Civilized Tribes and the United States by 1866 treaties, which were later modified by further allotments in 1902. The question presented is whether the United States Court of Appeals for the Federal Circuit erroneously affirmed dismissal under28 U.S.C. §2501 of Petitioners’ claims without addressing in any manner whatsoever Petitioners’ Repudiation Rule argument that the statute of limitations does not begin to run on claims by a trust beneficiary like Petitioners’, against a trustee, here the United States, to enforce the terms of a trust until, the trustee repudiates the trust relationship, something that to date the United States has not done.

Here are the district court materials and and the Federal Circuit decision.

Wolfchild v. United States Cert Petition

Matthew L.M. Fletcher1 Comment

Here — Wolfchild Cert Petition

Questions presented:

1. After Carcieri, whether federal court subject matter jurisdiction exists over Native American beneficiary claims of purported federal government violations of the 1934 IRA 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 set forth in United States v. Mitchell, 463 U.S. 206 (1983) and its progeny.

3. Whether the Federal Circuit’s holding that a 1980 Congressional Act terminated a trust impermissibly conflicts with the First Circuit’s decision in Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1979) in that the Federal Circuit 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.

Earlier posts on this case here, here, and here.

Supreme Court Denies Cert in Harjo and Elliott

Matthew L.M. Fletcher

The order list is here, with the Harjo and Elliott cases listed on page 3.

Neither decision is a big surprise, as the Court grants cert in only a small percentage of cert petitions. The trademark suit against the Redskins will continue through different plaintiffs, but the laches argument that served to defeat the Harjo plaintiffs applies with virtually equal force to the new plaintiffs. (AP article here).

The Elliott case is a welcome relief, given that the Court seems to grant cert petitions filed by non-Indians against tribal jurisdiction almost randomly. Here, one suspects the fact that the Ninth Circuit merely was remanding to tribal court for a decision on the merits may have some importance, but the Court has previously granted cert in cases prior to a tribal court decision on the merits (see Strate). The takeaway from the Elliott cert petition denial is simply that one must continue to assume the Court continues to look at tribal jurisdiction cases carefully, but makes its certiorari decisions based on some utterly random calculus.

We surely would love to know if Justice Sotomayor weighed in on these cases in any way, and if so, how.