cert petition

Dodging a Bullet — Roberts v. Hagener

Matthew L.M. Fletcher

The Supreme Court denied cert on January 12, 2009 in a little-known case called Roberts v. Hagener, out of the Ninth Circuit. The CA9 opinion is here and the Ninth Circuit briefs are here. Here is the cert petition (roberts-v-hegener-cert-petn), and an amicus brief from the Mountain States Legal Foundation supporting the petition (pacific-legal-foundation-amicus-brief).

This was a scary case, and only because the Supreme Court seems to be taking a greater interest in Indian Country the last few years. It was an attempt to convince the Court that the Fourteenth Amendment’s strict scrutiny test should apply to state game laws that recognize American Indian treaty rights. Of course, it is settled law that this is not the case, dating at least back to the 1970s treaty rights cases, and to Morton v. Mancari. But with the Supreme Court, nothing is really settled.

Anyway, dodged a bullet.

Marceau v. Blackfeet Housing Authority Cert Petition

Matthew L.M. Fletcher3 Comments

marceau-v-blackfeet-housing-authority-cert-petition

The SCT Project’s materials on this case are here.

Commentary on Harrah’s v. NGV Gaming Cert Petition

Matthew L.M. Fletcher1 Comment

Here is the reply brief from Harrah’s, and so the certiorari briefing is concluded (the petition is here, and the opposition is here).

I was a little surprised that SCOTUSblog lists this case as a petition to watch. I don’t see any of the indicators that this would be the kind of case to make the discuss list (including either party employing a member of the Supreme Court “bar” suggested by Prof. Lazarus), except for the very superficial circuit split alleged by the petitioners. Maybe they know something I don’t. [I suppose that SCOTUSblog might think this case is similar to Carcieri and MichGO, but I doubt it.]

I say the circuit split is superficial, but in reality it is illusory. The claimed split is between the Ninth and Second Circuits over the definition of “Indian lands.” The CA2 looked at “Indian lands” as used in the Indian Gaming Regulatory Act (25 U.S.C. 2711), and the CA9 looked at “Indian lands” as used in Section 81 of Title 25. The CA2 said that IGRA’s “Indian lands” definition includes both lands already held in trust and lands that will go into trust. The CA9 says that Section 81’s “Indian lands” definition includes only lands already held in trust. Both courts seem to have spent some time reading the dictionary on these cases — 1 U.S.C. 1 et seq. Looks like a split, right?

NO.

Hopefully, the SCT and their clerks will realize that no split exists at all. There are two reasons. First, the purposes of each statute distinguish them, even though they use the same words. Second, the operation and implementation of the different statutes prevent them from conflicting. I really don’t think the Dictionary Act would trump either of these two arguments, or else someone better go back and reargue D.C. v. Heller.

OK, the first point. Section 2711 is about management contracts that tribes might sign to manage a gaming facility. Tribes will and do sign these contracts long before any land is taken into trust, and even before a tribe owns a single acre. So it is the National Indian Gaming Commission’s responsibility to review these contracts could kick in before any land is taken into trust, making the CA2’s outcome reasonable. Section 81, on the other hand, is about tribes collateralizing lands held in trust for the tribes by the Secretary of Interior. There’s no reason to review a contract that potentially encumbers tribal trust land unless that land is already in trust, making the CA9’s decision reasonable.

Which leads to the second point, closely related — the Secretary cannot take land into trust without first determining that there are no encumbrances on the land (25 U.S.C. 465). So under Section 81, the Secretary doesn’t need to review a contract that might encumber trust land. In other words, the Secretary will never review a contract that might encumber “Indian lands” under Section 81 unless the land is already in trust. So, the CA9’s decision is the only decision possible. Conversely, IGRA expressly allows for the NIGC to review a contract regarding lands that will go into trust, often because the contract itself will provide the tribe funds to buy lands and ask the Secretary to take the land into trust.

And so, no circuit split.

I hope the Court isn’t confused by this one.

More Commentary on Carcieri and MichGO

Matthew L.M. Fletcher2 Comments

It might be useful to recap the various factors that might affect the Supreme Court’s consideration of Carcieri v. Kempthorne and MichGO v. Kempthorne. I’ve been quoted here (ICT) and here (Indianz) — correctly, no problem there — but one thing I wonder might affect MichGO.

What I’ve been saying for a few days now is that the outcome in Carcieri might affect whether or not the Court decides to hear MichGO on the merits, a grant, or whether it decides to remand MichGO in light of Carcieri, a GVR. One thing I had not considered until now is that MichGO has not made some key arguments that were available to it by virtue of the Carcieri case. Carcieri is about whether Section 5 of the Indian Reorganization Act can apply to a tribe not federally recognized by the federal government in 1934. Until its cert petition (and I have not seen the complaint), MichGO never made that argument. The MichGO cert petition’s second question presented is one that was available to them (the Carcieri litigation goes back way before the MichGO litigation) but one that MichGO apparently never made.

So if the Court GVR’s MichGO after a Carcieri reversal on the Section 5 question, it will be allowing MichGO to bootstrap itself onto an argument that it had never made. Frankly, if my facts are right, MichGO has waived its 1934 argument, and should not be the beneficiary of a remand to the D.C. Circuit.

Even if the Court GVR’s the MichGO case, the Gun Lake Band probably will still be able to show that they are eligible under Section 5, depending on how the Court’s majority opinion in Carcieri reads. MichGO, an organization created to delay gaming, likely for the benefit of other gaming and business entities, will continue to be a big winner merely by delaying the opening of yet another casino. And Gun Lake will have been the victim of really, really bad timing.

MichGO v. Kempthorne Update UPDATED !!!!

Matthew L.M. Fletcher

No news today — so the Court did not deny cert yet (here are the orders). There are several possibilities. First, and perhaps most likely, the Court will hold on to this one until the Carcieri v. Kempthorne decision comes out, which could be any day. Second, following this hold, the Court could either grant cert or GVR the case. I suspect the most likely outcome is a GVR, given the possibility that the Court will reverse the First Circuit in Carcieri.

Newer, better update — the Court apparently did not get to consideration of the MichGO petition. In fact, the Court has re-slated the petition for consideration on January 16, this Friday. Here is the docket sheet. Of course, maybe the Court is about to issue an opinion in Carcieri this week….

MichGO v. Kempthorne Cert Petition Update

Matthew L.M. Fletcher

The Supreme Court granted cert. in four cases today, none of which was the MichGO v. Kempthorne case. We’ll see Monday, perhaps, whether the Court denied cert. There could be a decent chance the Court will put this case on hold under after the Carcieri v. Kempthorne decision is released.

Harrah’s v. NGV a Petition to Watch

Matthew L.M. Fletcher

This is for the January 23 conference (today, the Court will consider the MichGO v. Kempthorne petition).

From SCOTUSblog:

Docket: 08-655
Title: Harrah’s Operating Company, Inc. v. NGV Gaming, Ltd.
Issue: Whether the term “Indian lands” in 25 U.S.C. 81(a) applies only to land currently held in trust by the United States or also to land that will be held in trust.

Navajo Nation v. US Forest Service Cert Petition

Matthew L.M. Fletcher1 Comment

from SCOTUSblog:

Yesterday, the Stanford clinic filed this cert. petition in Navajo Nation v. U.S. Forest Service, dealing with the circumstances in which governmental action may constitute a “substantial burden” under RFRA.  Jeff Fisher is counsel of record in the case; he was ably assisted by Stanford students Jaime Huling Delaye, Scott Noveck, David Schwartz, and David Muraskin.

MichGO v. Kempthorne a “Petition to Watch”

Matthew L.M. Fletcher1 Comment

SCOTUSblog has listed MichGO v. Kempthorne as a petition to watch (see post here) for the January 9 conference. Here are the briefs, etc.:

Docket: 08-554
Title: Michigan Gambling Opposition v. Kempthorne
Issue: Whether Section 5 of the Indian Reorganization Act, which gives the Secretary of Interior discretion to acquire lands for Native Americans, is an unconstitutional delegation of legislative authority.

United States Files Brief in Opposition to MichGO Cert Petition

Matthew L.M. Fletcher

Here is the brief (courtesy of Indianz) — ussg-opposition