Here is today’s order list. See prior post here.
The Court denied cert in two McGirt-related petitions filed by prisoners:
Bentley v. Oklahoma: Bentley Petition
White v. Oklahoma: White Petition
Here (along with briefs).
Here is the federal brief:
Cert petitions are here. CA9 opinion post is here.
Three petitions have made the famed SCOTUSblog list of petitions to watch for the long conference today. We wonder whether virtually every Indian law related case makes the list these days, but that’s not really true.
Interesting cases that are on the docket but don’t make the list are Fort Peck v. HUD (10-195), Maybee v. Idaho (09-1471), Metlakatla v. Sebelius (09-1466), and Schaghticoke v. Salazar (09-1433). Note that all four of these petitions were filed by tribal interests. As we say every time, note the general trends in Indian law cases in the Supreme Court petition stage: (1) the United States’ petitions are granted about 2/3 of the time, or more; (2) petitions by states and their subdivisions are granted about 1/3 of the time; (3) petitions by tribes are almost never granted. And even the OSG’s influence wanes when supporting tribal interests.
Other cases that rightfully do not belong on this list include Hoffman v. Sandia Pueblo (10-4) for reasons we’ve already discussed.
Here is the link, and the SCOTUSblog coverage of each petition:
Title: Gould v. Cayuga Indian Nation
Docket: 10-206
Issue(s): 1) Whether, on a matter that it believed the Supreme Court had not yet addressed, the New York Court of Appeals properly interpreted federal law in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance; and 2) whether the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua, notwithstanding that the Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.
Certiorari-Stage Documents
From How Appealing:
“MSU scholar says Indians face Supreme Court bias”: The Michigan Messenger yesterday posted online this item about a paper titled “Factbound and Splitless: Certiorari and Indian Law” by law professor Matthew L.M. Fletcher.
From SCOTUSBlog:
Matthew L.M. Fletcher (Michigan State University College of Law) has posted “Factbound and Splitless: Certiorari and Indian Law” on SSRN, see here. This article engages in an empirical study of 162 certiorari petitions that were filed in Indian Law cases between 1986 and 1994. To my knowledge, this is the first attempt to systematically analyze certiorari petitions in tribal cases. Professor Fletcher concludes that petitions brought by tribes during the period studied were often denied by the Court as factbound and splitless, while state and local governments received much more favorable treatment at the certiorari stage in tribal cases. Although I must confess that I do not agree with some of the conclusions reached in this paper, Fletcher’s article is thought-provoking and interesting. [David Stras]
You can read my newest Indian Country Today editorial here or here.
Here’s the text:
Each year, the U.S. Supreme Court chooses which appeals it wishes to decide. In most years, the court decides to hear fewer than 80 cases out of several thousand appeals. These usually include cases in which there is a split of authority in lower courts (often called a ”circuit split,” referencing the 13 federal circuit courts of appeals), cases in which a lower court has committed a gross error or cases in which there is a critical constitutional issue at stake. Cases in which there is no split, cases that will affect only a few people, cases involving simple correction of a minor lower court error or cases involving an unimportant issue are unlikely to be heard by the court.
Using the United States Law Week online database (that goes back to 1997 or so) that lists all the paid cert petitions filed, I generated a list of all cert petitions filed under the “Native Americans” database.
Here is a snippet of my findings, previously discussed here (and now updated):
Petitions filed by state governments, state agencies, or state officers in their official capacities: 27
Grants: 10 (including Alaska v. Venetie, Idaho v. Coeur d’Alene Tribe, Minnesota v. Mille Lacs, Montana v. Crow Tribe, Nevada v. Hicks, Sherrill v. Oneida, Wagnon v. Prairie Band, plus two GVRs).
Percentage: 37 % grant rate
Petitions filed by Indian tribes: 77
Grants: 6 (Cherokee Nation v. Leavitt, Chickasaw Nation v. United States, Kiowa Tribe v. Manufacturing Technologies, plus three GVRs).
Percentage: 8% grant rate
Now, excluding GVR’s, where the Court grants cert. for the purpose of remanding back to the lower court usually to allow the lower court to reconsider the case in light of a new precedent, here are the stats:
State petitions: 25
Grants: 8
Percentage: 32% grant rate
Tribal petitions: 74
Grants: 3
Percentage: 4% grant rate
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