cert petition

BLT: Harjo v. Redskins Case Reaches Supreme Court

Matthew L.M. Fletcher2 Comments

From the BLT:

The long-running dispute over the appropriateness of the “Redskins” name for the Washington D.C. NFL football franchise reached the Supreme Court today. Philip Mause, partner at Drinker Biddle & Reath in D.C., representing a group of Native Americans offended by the name, filed a petition for certiorari in the case titled Susan Harjo v. Pro-Football, Inc.

“This is a derogatory term for Indians that sticks out like an anomaly,” said Mause today. “No other group still has to deal with this kind of a term being used” in such a public and widespread way.

The case began with a petition in 1992 to cancel the Redskins trademark under the Lanham Act, which bars trademarks that “disparage … persons living or dead … or bring them into contempt, or disrepute.” The latest ruling by the U.S. Court of Appeals for the D.C. Circuit found that the claims were barred by the doctrine of laches, a defense that acts like a statute of limitations to protect defendants from being sued for long-ago violations of rights.

But Mause asserted that the doctrine does not apply, because the law explicitly allows cancellations of trademarks “at any time.” He cites a 2001 ruling by the U.S. Court of Appeals for the 3rd Circuit in Marshak v. Treadwell, in which now-Justice Samuel Alito Jr. said trademark cancellation claims are not time-barred. “We hope that ruling will be of some help,” said Mause.

In a footnote in the brief, Mause also suggested that “the views of the United States may be helpful to the Court.” Mause said the U.S. trademark office has sided with the Native Americans in the past, but the government has not spoken on whether the Supreme Court should take up the issue. Even without the government filing a brief, it is unlikely the Court will act on the petition before the end of this year, Mause indicated.

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Elliott v. White Mountain Apache Tribal Court Cert Petition

Matthew L.M. Fletcher3 Comments

This case arises out of a major forest fire (the Rodeo-Chediski fire) partially caused by Valinda Jo Elliott on White Mountain land (she started the Chediski part). The tribe sued her in tribal court for damages related to the fire. On her federal claim, she argued that the tribal court could not have jurisdiction over her. The Ninth Circuit’s holding was that tribal court jurisdiction was plausible (read: not entirely frivolous) and ordered her to exhaust tribal court remedies. As such, it appears the reason the Supreme Court would grant cert here is because four members of the Court believe it is time to either overrule or significantly undermine National Farmers Union and Iowa Mutual, the key cases in the tribal court exhaustion doctrine

Here is the petition — Elliott Cert Petition

The question presented:

Can a tribal court assert jurisdiction over a non-consenting non-Indian and force her to defend against civil claims in that unfamiliar forum when it is plain that the tribal court has neither regulatory nor adjudicatory jurisdiction and where the conduct at issue by the non-consenting non-Indian on tribal land does not and cannot ever threaten or directly effect the tribal political integrity, economic security, or the health or welfare of the tribe?

The lower court materials are here.

Citizen Potawatomi Nation Files Amicus Brief in Barrett v. United States

Matthew L.M. Fletcher

Here — CPN Amicus Brief

Other materials are here. And here is the Supreme Court docket.

The Economics of the Cert Pool — Former Clerks and Appellate Lawyers

Matthew L.M. Fletcher

OK, not an economist, but it seems to me that more than just Justices Stevens and Alito are going to have to forego the cert pool to maintain the economic viability of the Supreme Court cert pool.

And by economic viability, I mean for the former clerks and for others who are a part of the Supreme Court bar.

Consider first, that (perhaps until the last year or so), former Supreme Court clerks stood to gain a $50,000 or so bonus at their firm just for being a clerk. The experience of reading several hundred cert petitions and opps, and writing cert pool memos, plus knowing the inner workings of the Court, is invaluable once those clerks go out into the real world and start practicing before the Court.

But consider second, as noted here, that appellate litigators have a hard time explaining to clients why only two or three clerks will read their very expensive cert petition (or even cert opposition) before the whole thing is tossed without comment by the Court. Those clerks are the cert pool clerk, Stevens’ clerk, and Alito’s clerk, but maybe not even that many, since the Stevens and Alito clerks could just read the cert pool memo.

A modest proposal — there should be TWO cert pools. Let’s face it — the Court is generally split, with Roberts, Scalia, Alito, Thomas, and Kennedy (the most conservative swing judge in at least 120 years, or ever) on one side, and Breyer, Ginsburg, Stevens, and likely Sotomayor on the other. I’ve read enough cert pool memos to know that they’re written usually by clerks who know their audience — a majority of conservative, federalism judges with an originalist bent. Justices like Breyer, Ginsburg, and Souter (and Blackmun before them) joined out of convenience and probably cordiality. No reason for it. Everyone’s going to see the other cert pools memos. And getting the preliminary  views of more than one clerk is reason alone to do it, but now those Supreme Court litigators can say more clerks are reading those cert petitions….

Citizen Potawatomi Chair Files Cert Petition in Tax Dispute

Matthew L.M. Fletcher1 Comment

Here is the cert petition in Barrett v. U.S. (docket no. 09-32) — Barrett v. US Cert Petition

Questions presented:

1. Whether an Indian tribe can use Indians Claims Commission Act funds, appropriated by Congress and distributed to the tribe with a specific exemption from federal income tax, to pay federal income tax exempted salaries to elected officials the tribe is required to have under its tribal constitution.

2. Whether the imposition of a penalty by the Internal Revenue Service against the tribal chairman for sovereign legislative actions of the tribe improperly infringes on the tribe’s sovereign powers.

Lower court materials are available here.

Supreme Court Denies Cert in Border Wall Case

Matthew L.M. Fletcher

From NewsPirates (cert petition here):

border-fenceThe Supreme Court has refused to hear a challenge to the completion of the border fence between the US and Mexico, Fox News reports. Environmental groups, an Indian tribe, and the city of El Paso brought the challenge, contending that a fence will cut off access to the Rio Grande for religious, cultural, and municipal purposes. The Obama administration had encouraged the court to reject the case.
The petitioners also objected to the fence because its authorization, under then-Homeland Security chief Michael Chertoff, required Congress to waive federal, state, and local laws applying to the agency. “If allowed to stand,” the petitioners’ brief stated, the “order would constitute an unprecedented expansion of agency authority to preempt state and local law without clear congressional authority and without any oversight by any court.

Arizona Snowbowl Cert Petition on Deck This Week

Matthew L.M. Fletcher1 Comment

Navajo Nation v. United States Forest Service is set for this week’s conference. From SCOTUSblog:

Docket: 08-846
Title: Navajo Nation, et al. v. United States Forest Service, et al.
Issue: Whether a governmental action cannot constitute a “substantial burden” under RFRA unless it forces individuals to choose between following the tenets of their religion and receiving a governmental benefit or coerces them by threatening civil or criminal sanctions to act contrary to their religious beliefs.

[Akin Gump and Howe and Russell represent the petitioners]

Final Filing in Arizona Snowbowl Cert Petition

Matthew L.M. Fletcher

Here is the Navajo Nation’s reply brief — Navajo Reply Brief

The Supreme Court will decide whether or not to grant the petition on June 4 (see docket).

Supreme Court Denies Cert in Two Indian Law Cases

Matthew L.M. Fletcher

The cases are Marceau v. Blackfeet Housing Authority (No. 08-881) and Seneca v. USET (No. 08-1127). The SCOTUS order list is here (see page 3 for these cases).

Our posts on Marceau are here and here and here and here. And our posts on the Seneca case are here and here.

Commentary on the Status of the Arizona Snowbowl Cert Petition

Matthew L.M. Fletcher1 Comment

OK, so now the United States has come out in opposition to the Navajo Nation’s cert petition in the Snowbowl case. A few comments:

1. Too bad any effort to persuade the Obama Administration to change course in this case failed. We understand that with very, very new SG Kagan on board there was likely little chance to make that happen, but it’s still disappointing. What would be really disappointing is if the government is unwilling to consider settlement and dismissal under Rule 56 if the Court does grant cert, where the government has time to consider its position.

2. We think it’s fairly well established that the government was more likely wrong than not that there is no split in authority under the “substantial burden” test. The en banc opinion in the Ninth Circuit was a big stretch, and went way beyond the other circuits that have confronted the question. The question now is whether the Supreme Court thinks this is the right vehicle to decide the question. There may be one decent reason to think it is not — these tribes have already litigated the Snowbowl to the Supreme Court once before in Wilson v. Block, 708 F.2d 735, and the Court denied cert back then.

But of course, that doesn’t really matter if the Court wants this one. And there’s no reason to think it doesn’t. How many times has the Court used Indian law and Indian religions as a battleground for its religious freedom doctrines? Bowen, Lyng, Smith I, Smith II….