City of Sherrill v. Oneida Indian Nation

The Solicitor General and Indian Law

Matthew L.M. Fletcher1 Comment

The Senate just confirmed the nomination of Harvard Dean Elena Kagan as U.S. Solicitor General. The Solicitor’s Office, home the of the so-called “Tenth Justice,” has a great deal to say about Indian law. In particular, in Indian law cases not directly involving the United States as a party, the Solicitor General will often file an amicus brief on the merits, and the Court often invites the Solicitor to opine on whether or not to accept an Indian law cert petition. The SG’s recent briefs are here.

During the eight years of the Bush Administration, the U.S. Solicitor General’s Office filed 10 invitation and amicus briefs, covering 8 total cases. Of the 10 briefs, five supported tribal interests strongly, with another two partially supporting tribal interests. Interestingly, of the five strongly pro-tribal positions taken by the SG, the Supreme Court only agreed with the SG’s position once. The Court agreed to deny the cert petition filed by Teck Camino Metals in the 2007 Term in accordance with the SG’s position, but rejected the SG’s positions in Plains Commerce Bank, Wagnon, and Sherrill (twice — one on the merits and one at the petition stage).

This result is fairly remarkable, and worth more study. I wonder if the SG’s views have so little weight with the SCT in any other area of law, and if these outcomes are part of a longer trend in Federal Indian Law.

Here is the quick survey of the Solicitor’s amicus briefs and invitations, the position taken, and the impact of the brief during the Bush Administration:

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Kate Fort on “The New Laches” in the George Mason Law Review

Matthew L.M. Fletcher1 Comment

Kathryn E. Fort (MSU) has published “The New Laches: Creating Title Where None Existed” in the George Mason Law Review.  From the introduction:

Recent legal decisions dealing with Indian land claims have been cre-ating title for private property owners where no title previously existed. As has been explored by others, various areas of property law have been turned upside down in order to defeat tribes in court. However, one area, equity, has received special attention from the courts. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the United States Supreme Court in City of Sherrill v. Oneida Indian Nation to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims altogether. But is the use of these three defenses based on precedent them-selves? A careful examination of City of Sherrill and its progeny reveals that these defenses have in fact been combined to create a new defense, what I will call the “new laches” defense.

Kate Fort on The New Laches

Matthew L.M. Fletcher

Kate Fort of MSU College of Law has posted “The New Laches” on SSRN. This is the first comprehensive and historical study of the application of laches doctrine to sovereigns, federal, state, and tribal. Here is the abstract:

Tribal land claims are facing a new challenge from an old area of law. Courts have been paying special attention to the law of equity and how it can defeat tribal land claims. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the Supreme Court to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims. But are these three defenses based on precedent themselves? Rarely. Instead, they have been combined to create a new defense, what I will call the “new laches.” This new defense, so far used successfully in Indian land cases in New York state and unsuccessfully elsewhere, has been so broadly construed by the Second Circuit that, if this view is adopted nationwide, it could apply to any treaty-based claim brought by Indians or Indian tribes.