The questions presented are:
Whether the State of Washington Cigarette Tax laws are federally preempted and inapplicable to an American Indian motor carrier hauling cigarettes between Indian reservations in Interstate and Indian Commerce.
Whether the laws of the State of Washington can regulate an enrolled tribal Indian shipping goods between a federally recognized Indian Reservation in Idaho to his business on the reservation of his membership located in the State of Washington.
Here, the Oklahoma Tax Commission is seeking review of a CA10 decision allowing a suit brought by the Osage Nation to proceed over sovereign immunity objections. Here is our post about the CA10 decision, with briefs and other materials. And here is the cert petition.
Here are the questions presented (from the petition):
1. May federal courts employ the doctrine of Ex parte Young, 209 U.S. 123 (1908), to permit suits by Indian tribes, otherwise barred by state sovereign immunity, that seek to establish sovereignty and jurisdiction over historical reservations, without taking into consideration the substantial impact of the relief on the sovereignty and jurisdiction long-exercised over such lands by states?
2. In view of this Court’s ruling in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), and other decisions, may a federal court allow an Indian tribe’s suit – otherwise barred by the Eleventh Amendment – to proceed against state officers under the so-called “straightforward inquiry” used to determine the application of the Ex parte Young exception, when the relief would divest a state of substantial and long-exercised civil and criminal jurisdiction over its largest county?
3. Does a suit by an Indian tribe seeking a judicial determination that its historical reservation “remains” a present-day reservation involve the type of retrospective relief that cannot be pursued against state officers under the Ex parte Young exception to state sovereign immunity?
Mildly interesting development in the Kickapoo case regarding the CA5’s decision to strike down the so-called Class III procedures (aka the “Seminole” fix). Kickapoo filed the cert petition, a tribal amicus brief supported the petition, but then Texas declined to respond (which is a respondent’s prerogative, especially in a case where there does not appear to be a clean circuit split). The US, the defendant in the original case, filed a brief urging the SCT to decline the case, although the brief went into detail into just how wrong the government thought the CA5 decision was.
Now the Court has asked for Texas to respond. In my limited experience with the Court’s internal dynamics, the Court might do this as a means of delaying a decision on a cert petition, but for what, in this case, I don’t know.
MichGo’s attorney asserts a plan to file a cert petition (see below the fold for the news article), and even boasts that he has three votes for cert already — Scalia and Thomas because they dissented in the South Dakota case in 1996, and Roberts because he represented a party making a nondelegation claim to 25 U.S.C. sec. 465 in 1999/2000.
This is spurious, given very recent events.
The Department of Interior just issued nearly-final IGRA Section 20 [25 U.S.C. 2719] regulations. These were the regulations I was talking about in my ICT editorial (not knowing they were about to be finalized). The very existence of these regulations severely blunts Judge Brown’s dissent in the D.C. Circuit case. Here, the Secretary is finally agreeing to formalize restrictions on his discretion contained in section 5 of the IRA [25 U.S.C. 465] in the context of Section 20 trust acquisitions.
One could make a plausible claim that, to the extent the SCT would be persuaded by a solitary dissent in a very minor case (nationally), it is now all but a dead letter.
What the D.C. Circuit should do is amend its decision to reflect the existence of the new regs, adding another nail to the coffin of the Section 5 nondelegation argument.
Finally, as MichGO’s attorney should know, one solitary dissent does not a circuit split make.
The United States petitioned for cert in the ongoing Navajo Nation case over the Peabody Coal debacle. The Supreme Court held in 2003 that the Indian Mineral Leasing Act did not create a duty, but the Federal Circuit on remand resurrected the claim. Once again, the claim may give rise to $600 million in damages to the United States.
The lower court materials (briefs and opinions) are here.
Ho-Chunk Nation has filed a cert petition in its dispute over revenue sharing with the State of Wisconsin.
Here is the petition — hcn-cert-petition
Here is the docket site — No. 07-1402.
Here are the rest of the materials — CA7 opinion and some briefs — rest of the materials.
SCOTUSBlog isn’t taking any chances with Indian law now. 🙂
The Kickapoo v. Texas petition is on its watch list for the May 29, 2008 conference (here).
Docket: 07-1109
Case name: Kickapoo Traditional Tribe of Texas v. Texas, et al.
Issue: Whether, following Seminole Tribe v. Florida (1996), the Secretary of the Interior may establish procedures for Indian gaming if a state declines to enter a compact with the Tribe and invokes immunity from suit under the 11th Amendment.
The Tohono O’odham Nation joined an amicus brief supporting the cert petition in Defenders of Wildlife v. Chertoff (No. 07-1180) (amici-supporting-cert-petn-national-advocacy-center-et-al). The government has until May 18 to file a response. This is a potentially ground breaking case, given that the Department of Homeland Security has invoked a statute that allows the Department to ignore any law (especially environmental protection laws) that would delay the construction of the border fence (for analysis, see SCOTUSblog).
We’ve written about some aspects of this controversy earlier (here).
While the chances for this petition on tribal sovereign immunity to be granted seem pretty slim, who knows? The cert petition briefs are all in and available here. We’ll know after the conference on May 8, 2008.
Turtle Talk 
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