Here it is — navajo-cert-petn-amicus-brief
Here is the cert petition.
Other briefs supporting the petition are here as well.
cert petition
Cert Petition in California v. Cachil Dehe Band of Wintun Indians
Ah, Rule 19! Here is California’s cert petition — california-petition-for-cert
Just so everyone knows, I called this YEARS ago! See my “The Comparative Rights of Indispensable Sovereigns.” 🙂
And here are the lower court materials (Rincon Band; Cachil Dehe; and San Pascqual). And here is our post on Pimentel.
Questions Presented (from the cert petition):
In 1999, the State of California and sixty-one federally recognized tribes entered into virtually identical tribal-state class III gaming compacts (Compacts) under the authority of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (IGRA). The Compacts allow those tribes to operate slot machines if they have been issued licenses for those devices from a prioritized and limited license pool established by the Compacts, or if they have obtained a compact amendment allowing them to operate slot machines without reference to that license pool. The questions presented are:
1. In applying Federal Rule of Civil Procedure 19 (Rule 19), may a federal court, consistent with the rule of decision in Republic of the Philippines v. Pimentel, 128 S. Ct. 2180 (2008), utilize the authority it has under Rule 19(b) to safeguard (through the shaping of relief) the legally protected interest of an absent sovereign as a basis for finding that the absent sovereign is not a required party within the meaning of Rule 19(a)?
2. May the asserted ability of a court of appeals to resolve inconsistent district court decisions on the same claim for relief be relied upon to conclude that an absent person need not be joined under Rule 19(a)?
Obama Administration Moves to Dismiss EPA Mercury Regulation Cert Petition
Several Michigan tribes had an interest in this case, and signed on to an amicus brief before the D.C. Circuit (here). There are still industry petitions to deal with, but with the EPA dropping one petition (the EPA’s petition is here), it’s a better litigation climate.
From SCOTUSblog:
Attention has focused on the Solicitor General’s approach to the al-Marri litigation as the first instance in which the Obama Administration’s views would affect the government’s position in the Supreme Court.
But the first change came in an environmental case today. The Solicitor General, in act likely to be hailed by environmental groups, moved to dismiss the EPA’s position in No. 08-512, EPA v. State of New Jersey. The petitionD.C. Circuit ruling regarding the EPA’s approach to regulating mercury emissions from power plants. 17 States, the City of Baltimore, 11 tribes, and several public health and environmental organizations opposed the Bush Administration’s position.
The original petition had protested that the EPA had discretion to delist source categories for regulation without making the specific health and environmental determinations required by the Act. But today’s submission indicated that the EPA had determined to follow the regulatory scheme favored by the states and mandated by the D.C. Circuit, which would hold power plants to stricter and less flexible emissions standards and hold the agency to a higher standard for changing source categories. The Solicitor General’s motion to dismiss stated that the EPA has decided “to develop appropriate standards to regulate power-plant emissions under Section 7412″ and therefore does not seek review of the lower ruling.
***The parallel case that seeks review of the same judgment, Utility Air Regulatory Group v. New Jersey, is still pending, but seems less likely to be granted certiorari because of the government’s compliance with the D.C. Circuit’s ruling. UARG has yet to file a reply brief and the petition has been distributed for the Justice’s conference on February 20. The original filings can be found below.
Docket: 08-352, 08-512
Title: Utility Air Regulatory Group v. New Jersey, et al.; E.P.A. v. State of New Jersey
Issue: Whether the Environmental Protection Agency may eliminate power plants from a list of source categories regulated under the Clean Air Act.
- Opinion below (D.C. Circuit)
- Petition for certiorari (08-352)
- Petition for certiorari(08-512)
- Brief in opposition
Coushatta Tribe v. Meyer & Associates Cert Petition
This case involves the question of whether state courts have to comply with the tribal court exhaustion doctrine. Here is the petition — coushatta-tribe-v-meyer-and-assoc-cert-petition
Here is the lower court opinion, from the Louisiana Supreme Court.
Catskill Litigation Trust v. Harrah’s Cert Petition
Here it is — catskill-litigation-trust-cert-petition
This was filed in mid-January, and since the SCT denied cert in the CA9 case that the petitioners claim conflicts with this one, I bet this one has no chance of being granted.
Cook v. Avi Casino Enters. — Trouble?
The Cook v. Avi Casino Enterprises cert petition has a reasonable chance of being granted. There are a bunch of factors that support the petitioners, and a bunch that don’t.
The case involves dram shop actions against tribal casinos. I’d bet the wide majority of tribal casinos waive sovereign immunity in tribal court for these kinds of actions, but the Cook case and others usually involve a claim brought in state courts, where tribes have not waived their immunity. Interestingly, other than one Oklahoma case, all of the state (and now federal) courts have found that tribal sovereign immunity precludes these actions. Our discussion of the Oklahoma case, and at least three other state cases is here.
So there is a split of authority, but it’s not between federal circuits, which decreases the chance for review somewhat. And there is a Supreme Court case, Rice v. Rehner, a preemption case that held that there is little or no tradition of tribal sovereignty in the context of alchoholic beverage transactions. The petitioners are asking the Court to expand that holding to strike down sovereign immunity in state courts.
On the other hand, the petitioners are asking for a second chance at the pot, likely because they refused to bring a claim in tribal court. In short, these petitioners, who came onto the reservation on their own accord and conducted business with an Indian tribe, want the right to make a state court claim, and want that right to trump the available tribal court venue. Moreover, the Supreme Court might not be terribly interested in another tribal sovereign immunity case, especially since the state court cases are all decided based on state law, interestingly enough. Yes, it’s true, state courts also recognize tribal sovereign immunity.
This is an important question for gaming tribes, many of which have priced and acquired insurance to cover dram shop actions on the basis that these cases would be decided in tribal courts.
Finally, there is a decent argument that the tribal-state gaming compact relationship would be undermined by a decision eliminating or reducing tribal immunity in this context. Increasing the cost for tribes of doing business hurts state revenue sharing. One hopes the states recognize that.
Cook v. Avi Casino Enterprises Cert Petition
Here is the petition — cook-v-avi-casino-enterprises-cert-petition
Here are the lower court materials (previously posted).
Florida House of Representatives Opposition to Cert Petition
Here is the respondent’s response to the cert petition filed in Seminole Tribe v. Florida House of Reps.
MichGO Decision — Implications for Carcieri v. Kempthorne?
Who knows, except the people at the Supreme Court?
One possibility is that the Supreme Court denied cert in MichGO because the Court is going to uphold the Secretary of Interior’s authority to take land into trust for tribes not federally recognized in 1934 (tribes like the Gun Lake Band and the Narragansett Tribe), the key issue in Carcieri. If the Court was to reject the Secretary’s authority in Carcieri, then there would be reason to grant cert in MichGO to correct the lower court’s holding. They might choose to do this through a tool called GVR — Grant, Vacate, and Remand. But if the Court was to affirm the Secretary’s holding, then the lower court decision in MichGO is correct even after Carcieri, and so there’s no reason to review the decision.
However, there might be a problem with this theory; namely (if I am correct), MichGO never once argued that Gun Lake Band is ineligible under Section 5 because it wasn’t recognized in 1934. They did raise it in the cert petition, but one suspects that it’s too late then. MichGO could have raised the question from the outset, because the Narragansett litigation had been ongoing for some time. So maybe that’s why the Court denied cert in MichGO. And, if so, the cert denial offers no clues as to the possible outcome in Carcieri.
Finally, one great bit of news — since the Court denied cert in MichGO, the nondelegation doctrine claim that MichGO brought to the Court once again goes by the wayside (the Court had previously refused to accept this question in Carcieri as well, and in several other cases before that).
MichGO Cert Petition Denied — UPDATE
The SCT list of orders is here (the line is near the bottom of page 10).
The Gun Lake Band’s press release is here: pr-cert-denied-12109
And a timeline of the case is here: glt-casino-timeline-12109
Thanks to Gale and Zeke for these materials.
Turtle Talk 
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