cert petition – Page 76

News Coverage of MichGo v. Kempthorne Case: Cert Petition Planned

May 2, 2008May 2, 2008Matthew L.M. Fletcher

I spoke to the author of this news article yesterday. He quotes me as making yet another prediction on whether the Court will grant cert as being “zero,” but what I thought I said was that MichGo’s chances of getting a stay is close to zero. I did say that I think a plausible Section 5 challenge will have to come from a different fact pattern, such as an off-reservation fee to trust decision, assuming there will ever be any again. Or a decision involving a wealthy gaming tribe like Oneida or Mashantucket Pequot.

Of note, the reporter told me that the MichGo attorney thought that the Carcieri case was a good sign for MichGo, in part because so many states signed on to an amicus brief supporting the cert petition. He thinks those states will support MichGo’s petition, too. But I wonder. States like Michigan and California are actually banking on the revenues from new Indian gaming operations in order to help balance their budgets. I don’t think these states would sign on, or else they’d be hurting themselves.

From Indianz :

An Indian law professor says there’s “zero” chance the U.S. Supreme Court will hear a land-into-trust case involving the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians of Michigan. Matthew L.M. Fletcher, an assistant professor of law and director of the Indigenous Law & Policy Center at Michigan State University, said the court, at some point, will hear a challenge to the Indian Reorganization Act. The 1934 law authorized the land-into-trust process and opponents say it is unconstitutional. The D.C. Circuit Court of Appeals disagreed and ruled that the Bureau of Indian Affairs can acquire 147 acres for the tribe. A casino and other development are planned at the site. One judge, however, agreed that Section 5 of the IRA is unconstitutional. A group called Michigan Gambling Opposition hopes to convince the Supreme Court that the law is too broad. But Fletcher says the case is bogged down by other details to make it appeal-worthy. “I don’t think there’s any chance,” he told The Grand Rapids Press. “I really think the odds are close to zero that the Supreme Court would hear it.”

Get the Story:
Foes of Gun Lake Casino cling to slim legal hope (The Grand Rapids Press 5/2)
Gun Lake casino opponents down to last try (The Muskegon Chronicle 5/2)

Kickapoo v. Texas — US Recommends Cert Denial

May 1, 2008Matthew L.M. Fletcher

In the Kickapoo Tribe’s petition for cert to the Supreme Court re: the Class III Procedures (i.e, the Seminole Tribe “fix”) that were invalidated by the Fifth Circuit, the United States (ostensibly on the same side as the Tribe) filed a brief opposing certiorari (here). The State of Texas had already declined to respond to the cert petition.

The government’s brief is an interesting read. First, the US says the Fifth Circuit was wrong on any number of points — namely, that the court incorrectly held that the case was ripe for decision (the procedures were not yet complete) and that the court incorrectly held that the Secretary was not authorized to issue the regulation in the first place. Second, the government says there is no reason to hear this case now, given that it would be a case of first impression for the Supreme Court (usually a death knell for cert petitions) and that the Fifth Circuit’s panel decision was split three ways.

If there was any doubt that the Kickapoo petition would be denied, this brief effectively dispels that doubt.

Carls v. Blue Lake Housing Authority Cert Opp

April 22, 2008Matthew L.M. Fletcher

carls-cert-opp

The rest of the materials are here.

Tribal Amicus Brief Supporting Kickapoo v. Texas Cert Petition

April 3, 2008Matthew L.M. Fletcher2 Comments

Several tribes — Jena Band of Choctaw Indians, Alabama-Coushatta Tribe of Texas, Citizen Potawatomi Nation, Coquille Indian Tribe, Rincon Band of Luiseno Indians, Shoalwater Bay Indian Tribe, Spokane Tribe of Indians, Standing Rock Sioux Tribe — filed a joint amicus brief supporting the Kickapoo Tribe’s cert petition over the Secretarial procedures for establishing Class III gaming compacts, a rule struck down by the Fifth Circuit a few months ago. Here is the Tribal Amicus Brief. Here is the link to the Kickapoo cert petition. The State’s cert opposition is due later this month.

It is significant, of course, that the United States did not file a cert petition.

Kickapoo v. Texas Cert Petition

March 3, 2008March 7, 2008Matthew L.M. Fletcher1 Comment

The petition is here. This case concerns the validity of25 CFR Part 291, the procedures established by the Secretary of the Interior to act as a “Seminole fix.”

There is no serious chance the Court will grant cert in this case, unless the United States also files a petition. Even then, this is a likely case of first impression, a death knell for cert petitions.

Really, I should get out of the certiorari prediction business….

Certiorari Granted in Carcieri v. Kempthorne

February 25, 2008March 7, 2008Matthew L.M. Fletcher1 Comment

Here’s the order. The Court will address two questions:

1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.

2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.

The Court declined to hear the third proposed question presented:

3. Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust.

New Cert Petition — Carls v. Blue Lake Housing Authority

February 16, 2008Matthew L.M. Fletcher1 Comment

This case involves the tribal sovereign immunity of the Blue Lake Housing Authority. It is being appealed out of the California state court system. Here are the materials so far:

Cert Petition in Carls v. Blue Lake Housing Authority

Unpublished Cal COA (3rd) Opinion

Carls Appellant Brief (Cal COA)

Blue Lake Appellee Brief (Cal COA)

Carcieri v. Kempthorne a “Petition to Watch”

February 8, 2008August 15, 2008Matthew L.M. Fletcher

SCOTUSBlog lists Carcieri v. Kempthorne as a petition to watch for the Feb. 22 conference.

There are some warning signs, notably the amicus brief filed by numerous states in support of Rhode Island’s petition. See Gregory A. Caldiera & John R. Wright, Organized Interests and Agenda Setting in the U.S. Supreme Court, 82 American Political Science Review 1109, 1122 (1988 ) (“[A]micus curiae briefs filed in support of the petition for certiorari increase the estimated probability that the Supreme Court will grant by a magnitude of .5 or .6, depending upon the characteristics of a particular case.”).

As I argued earlier, however, (1) there is no circuit split; and (2) the issue may turn on the particular import of the Rhode Island Indian Claims Settlement Act, meaning that the outcome could have little or no import nationally. Moreover, the United States is in opposition, so these factors may be sufficient to persuade the Court to let this one percolate.

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