cert petition

Coushatta Tribe v. Meyer & Assoc. a “Petition to Watch”

Matthew L.M. Fletcher2 Comments

SCOTUSBlog lists Coushatta Tribe v. Meyer & Assoc. as a petition to watch for the April 3, 2009 conference. A cursory review of the cert petition shows that there may be a conflict in the state courts about whether the tribal court exhaustion doctrine enunciated by National Farmers Union and Iowa Mutual applies to state courts. The conflict seems to be with the Connecticut courts, and perhaps the New York and Wisconsin courts (though there are good reasons to doubt whether those courts have really embraced the doctrine), which have held that the tribal court exhaustion doctrine applies to its courts. Other courts — Louisiana, Arizona, and others — have rejected the application of the doctrine to their courts.

My sense is that the Court will deny this petition, though it is definitely worth watching. Three key reasons: (1) Louisiana’s course of action was to treat this common law doctrine as applying only to federal courts, preserving its own choice whether or not to adopt this federal court doctrine (a choice it made in the negative, just as Connecticut chose to adopt it, presumably of its own free will), making this dispute more a state law question than a federal law question; (2) the tribe is the petitioner; and (3) this is a common law case, rather than a federal statutory interpretation case or a federal constitutional case.

If a state court followed National Farmers Union, complaining loudly that it had no choice because of federal bullying or something, then there probably would be more Supreme Court interest. There doesn’t seem to be a federal government interest in the tribal court exhaustion doctrine that would be apparent to the Court, a serious problem I suspect is behind much of the Court’s recent 25-year retreat from its earlier federal Indian law jurisprudence.

A potential wildcard is that the state court’s opinion seems to run a little roughshod over the tribe’s immunity, but this seems to be limited to the tribe’s own laws, something that wouldn’t be likely to interest the Court.

From SCOTUSblog:

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Arizona Snowbowl Case — Will US Recommend Cert Grant, Too?

Matthew L.M. Fletcher

As Indianz reports, the Navajo Nation v. United States Forest Service cert petition is brewing. A bunch of amici have filed supporting the cert petition, which definitely gets the attention of the Supreme Court (or at least the cert pool).

There are times when the respondent to a cert petition agrees with the petitioner that the Court should grant cert and hear the case. It happened in Negonsott v. Samuels (link to cert pool memo) and it could happen again … maybe.

There isn’t a classic or clear circuit split, but the CA9 in the Snowbowl case has come up with the most restrictive way to interpret RFRA’s “substantial burden test,” and I bet the United States would like to see the CA9’s rule expanded nationwide. And since American Indian religious freedom rights don’t do very well in the SCT, the United States might think this is the right vehicle and take a gamble. I’m being pretty cynical, and it is pretty unlikely, but you never know.

The Solicitor General and Indian Law

Matthew L.M. Fletcher1 Comment

The Senate just confirmed the nomination of Harvard Dean Elena Kagan as U.S. Solicitor General. The Solicitor’s Office, home the of the so-called “Tenth Justice,” has a great deal to say about Indian law. In particular, in Indian law cases not directly involving the United States as a party, the Solicitor General will often file an amicus brief on the merits, and the Court often invites the Solicitor to opine on whether or not to accept an Indian law cert petition. The SG’s recent briefs are here.

During the eight years of the Bush Administration, the U.S. Solicitor General’s Office filed 10 invitation and amicus briefs, covering 8 total cases. Of the 10 briefs, five supported tribal interests strongly, with another two partially supporting tribal interests. Interestingly, of the five strongly pro-tribal positions taken by the SG, the Supreme Court only agreed with the SG’s position once. The Court agreed to deny the cert petition filed by Teck Camino Metals in the 2007 Term in accordance with the SG’s position, but rejected the SG’s positions in Plains Commerce Bank, Wagnon, and Sherrill (twice — one on the merits and one at the petition stage).

This result is fairly remarkable, and worth more study. I wonder if the SG’s views have so little weight with the SCT in any other area of law, and if these outcomes are part of a longer trend in Federal Indian Law.

Here is the quick survey of the Solicitor’s amicus briefs and invitations, the position taken, and the impact of the brief during the Bush Administration:

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Seneca v. United South and Eastern Tribes Cert Petition

Matthew L.M. Fletcher1 Comment

Is here — seneca-cert-petition

Lower court materials are here.

Question presented:

Whether the Court of Appeals impermissibly expanded the intent of the Indian Self-Determination Act by applying a “liberal” standard to bring within its scope libelous conduct directed by tribal officials against a federal agency official?

Cert Opposition in Catskills Litigation Trust v. Harrah’s

Matthew L.M. Fletcher

Here is the cert opp from Harrah’s — harrahs-cert-opp

Here is the cert petition.

Cert Opposition in Coushatta v. Meyer and Assoc.

Matthew L.M. Fletcher

Here is the cert opp — meyer-assoc-cert-opp

The cert petition is here.

Supreme Court Denies Cert in Seminole Tribe v. Florida House of Representatives

Matthew L.M. Fletcher

Here is the Court’s order list for today. Seminole’s bad news is on page 3.

This was to be expected, though at some point the Court will grant cert on an Indian Gaming Regulatory Act case, if enough state supreme courts come through with strange opinions. It might be awhile….

Commissioner of Public Lands v. New Mexico Cert Petition

Matthew L.M. Fletcher

This new filing (commissioner-public-lands-cert-petition) is an appeal of a New Mexico appellate court decision (here). The case also involves the Jicarilla Apache Nation, Navajo Nation, and Ute Mountain Ute Tribe.

Here is the question presented:

Whether the New Mexico Commissioner of Public Lands may claim federal reserved water rights with respect to lands Congress reserved from the federal public domain, and granted to the State of New Mexico subject to a strict, federally enforceable trust, to support public education and for other related purposes specified by Congress.

Friday v. U.S. Cert Petition — Not a “Petition to Watch” — Commentary

Matthew L.M. Fletcher2 Comments

Tomorrow the Supreme Court likely will deny cert in the Friday v. United States petition. SCOTUSblog does not pick it as a “petition to watch”, which means something. There was a moment when the Supreme Court might have heard this case (and maybe not in a good way, since the United States would be the petitioner then), but the Tenth Circuit joined the Ninth Circuit in upholding the constitutionality of the Bald Eagle Protection Act.

The ironic, even ridiculous, result of these cases is that it is easier for non-Indians to take advantage of the American Indian religious exemptions than it is for Indians. Yesterday, Indianz reported on one such case favoring non-Indians. Here is the argument:

Samuel Wilgus Jr and Raymond Hardman were convicted of possessing feathers without a federal permit. But since they are not enrolled in a federally recognized tribe, they wouldn’t have been able to obtain one. The scheme violates the Religious Freedom Restoration Act, Judge Dee Benson ruled. The men say they are practitioners of Native American religions.  (emphasis added) [Here is the opinion — Wilgus Order]

So, what this means is that the very existence of a regulatory/statutory mechanism for Indians to acquire eagle parts under the Protection Act through the National Eagle Repository — a mechanism that is incontrovertibly useless, a fact that Indian people could conceivably prove (but apparently not a “constitutional fact”) — means that the statute does not violate the Religious Freedom Restoration Act. But for non-Indians, who can never take advantage of the Repository (and, perhaps, Indian religions), it is a constitutional violation.

I’ve convinced myself. It is ridiculous.

Amar and Brownstein on the Navajo Nation v. USFS Case

Matthew L.M. Fletcher1 Comment

Wow! This may be the first time anyone on Findlaw has written anything substantive on Indian law. This might actually contribute to raising the profile of the case a bit for the SCT.

From Findlaw (via How Appealing and Con Law Prof Blog):

By VIKRAM DAVID AMAR AND ALAN BROWNSTEIN

The U.S. Supreme Court will decide in the coming weeks whether to take up an important and interesting case from the U.S Court of Appeals for the Ninth Circuit involving religious liberties and the seminal federal statute – the Religious Freedom Restoration Act (RFRA) – designed to safeguard them. In this column, we will discuss the issues the case raises; the reasons why the Ninth Circuit’s resolution of these issues, while understandable, might not do justice to the complex and competing interests involved; and the problems that both the Supreme Court and lower courts face when trying to implement this well-meaning but imperfectly-drafted Congressional statute.

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