Here.
Interesting brief, filed in response to the SG’s invitation brief recommending denial of the petition. I wonder how many of these briefs directly insult the SG’s office. This one skirts the edge of insult, I think, questioning the candor of the SG.
The Supreme Court granted cert in an Indian law case where the petition was filed in favor of tribal interests. This is, of course, the Patchak case involving the Department of Interior’s decision to take land into trust for gaming purposes on behalf of the Gun Lake Band. The last time the Court granted a petition filed on behalf of tribal interests was Cherokee Nation v. Leavitt, a case decided in 2005. The Court might also grant cert this Term in Ramah Navajo v. Salazar. Key to these successful cert petitions is the participation of the United States as supportive of the granting of the petition (if not the merits). In fact, every cert petition granted on behalf of tribal interests in recent memory has the support of the federal government, the last one (I believe) being Mississippi Band Choctaw v. Holyfield. Only Justice Scalia remains from that Court.
Key point: A cert petition on behalf of tribal interests has almost no chance of being granted by the Roberts Court unless the United States favors of the petition. Even then, as the Oneida and Cayuga land claims petitions demonstrates, it is a bit of a crap shoot.
Corboy v. Louie is more representative of where the Supreme Court is in relation to Indian law (though I suppose this isn’t an Indian law case, precisely). There’s nothing certworthy in this case whatsover (no split, nothing of national importance, a case brought by a private tax protester), but the Court is thinking carefully about this case perhaps because Indian law-type legal doctrines are outside of what Dean Getches called the “mainstream” of constitutional law, and should be reeled in. I have no doubt the OSG will recommend a denial because there simply is nothing worthy of Supreme Court review, but the fact this isn’t already a denied petition is telling.
Key point: A cert petition opposing tribal interests (regardless of its merit) receives more attention from the Supreme Court than a petition favoring tribal interests. End of story.
[Moved up from James Meggesto’s comment.]
A quick note from Patricia Millett – who has been handling the case for the Osage Nation at the Supreme Court level – for those readers that may be interested in the background and timing going forward. On March 5, 2010, the Tenth Circuit held that the Osage Nation’s reservation had been disestablished, and it did so in the acknowledged absence of any textual direction from Congress and despite recognition of the Reservation by the Executive Branch of the U.S. Government. After the Tenth Circuit denied rehearing, the Osage Nation filed a petition for certiorari with the Supreme Court seeking review of a conflict in the circuits concerning the proper mode of analyzing disestablishment questions. Today’s order from the Supreme Court calling for the views of the Solicitor General on the Nation’s petition is a significant development in the case because it signals that the Supreme Court is looking seriously at the petition, and the United States’ views on this important question will now be officially obtained for the first time in this case. Indeed, one might question whether, as a basic matter of separation of powers, a court could hold that a reservation has been disestablished without any express direction from Congress or obtaining the views of the United States government. Given the timing of the Court’s order, it is likely that the United States will file its brief in response to the Court’s order in May and the Court will act on the petition before the end of the Term in June.
Here is today’s order, with the Osage Nation v. Irby petition mentioned on page 2.
Cert stage briefs are here.
This is the sixth CVSG in an Indian law cases in the last two years.
A couple years back, we wrote a post about the important of the Solicitor General’s views in Indian law cases (here). I followed that up with a short paper on how it appeared that the OSG’s influence on the Supreme Court — usually very prominent — seemed to wither when the OSG sided with tribal interests in Supreme Court litigation.
In this Term alone, at the invitation of the Supreme Court, the OSG has already filed two invitation briefs (Hogan v. Kaltag and Thunderhorse v. Pierce), and could file two more before the Term ends in the summer (Schwarzeneggar v. Rincon Band and Miccosukee Tribe v. Kraus-Anderson Construction). These invitation briefs are the result of Supreme Court orders inviting the views of the Solicitor General in cases where the U.S. is not a party (called a CVSG — a call for the views of the Solicitor General), but where the federal government may have a special interest or special expertise in a particular issue. The Court has asked for the Solicitor General’s views on an Indian law petition, on average, somewhat less than once per Term.
So the four recent CVSGs are interesting, to say the least.
There are tons of theories as to why the Court might issue a CVSG. For example, a Supreme Court clerk in the cert pool might simply be flummoxed by a question, and recommend a CVSG so as to avoid writing a poor memo; or a Justice or group of Justices might be wary of a grant in a particular case thinking a majority would rule against the Justice’s preference, and so seek a CVSG (a “defensive CVSG,” if you will); or any number of other reasons. It bears note that the OSG has already passed on drafting an amicus brief during the certiorari stage, and so the Court’s issuance of a CVSG is, to some extent, evidence of the Court second-guessing the government’s choice to sit back on a particular case. In Indian law cases, it makes sense to issue the occasional CVSG — the federal government is the trustee of Indian tribes and Indian property, the government has experience and expertise in Indian affairs and litigation involving tribal interests, and Indian law is a uniquely federal question.
So why so many CVSGs this Term (three, and one carried over from last Term)? It could be with the recent turnover in the Court, the new Justices really do need the additional advice from a respected authority (that is, the OSG). Maybe the OSG is writing fewer amicus briefs during the cert stage than before, and so the Court is trying to fill that gap with CVSGs. Maybe there are few Justices that at least superficially support tribal interests, and they are being successful in persuading the rest of the Conference to defer to the OSG through the CVSG process before issuing a grant against tribal interests (“defensive CVSGs”).
One possibility (a total long-shot, I know) is that the Court is gun-shy about granting a cert petition brought by a state or a non-Indian party (but obviously not the United States) because of the Plains Commerce Bank v. Long Family Land and Cattle Co. debacle. I say debacle because I get the sense that the majority of the Supreme Court was surprised by the way the case played out. Going back and reading Plains Commerce Bank’s cert petition, the petitioner fudged the facts a bit in trying to make the tribal court decision look irresponsible to the Court. Instead of a perfect vehicle (that is, set of facts) that would support a resounding decision rejecting tribal court jurisdiction, the Court was faced with a tribal court that allowed and encouraged non-Indians to participate in the jury pool, a non-Indian bank that had been a significant repeat player in tribal court cases, and especially a non-Indian bank well-known for discriminatory lending practices in Indian country. The cert opposition brief apparently didn’t do a good enough job articulating those concerns and others. Chief Justice Roberts still found four reliable conservative votes for his majority opinion, but at great cost, I think, to the Court’s claim to impartiality in Indian law cases.
[If you don’t think the Court looks for a particular set of facts that are strongly anti-tribal before they’ll hear a case, see the cert pool memos in FMC v. Shoshone-Bannock Tribes, where the Court declined to accept a Montana case brought by a non-Indian company (which they later would in Strate v. A-1 Contractors), and American Management and Amusement v. Barona Group, where the Court declined to accept a challenge to tribal claims based on laches (which they later would in Sherrill v. Oneida Indian Nation).]
Now is a critical time for tribal interests. There may soon be a new Solicitor General, and the Court appears to be relying more on the OSG for Indian law advice (the Court accepted the recommendation to deny the petitions as stated in both invitation briefs filed this Term).
None of this has any import when the OSG files cert petitions against tribal interests in cases where it seems unlikely the government would have chosen to do so before the last few years, but that’s the subject of another posting another time.
Huge brief, here: Hogan 09-960 (SG Response).
Earlier materials here.
Interesting development, and better than a grant, I suppose, but the Supreme Court has asked the Office of Solicitor General to express the federal government’s views in the Hogan v. Kaltag Tribal Council case — also known as a CVSG. Order list here.
It is extremely likely that the Court will decide whether or not to take the case based on the brief filed by the OSG.
Other materials here.
The article, “An Empirical Analysis of Supreme Court Certiorari Petition Procedures: The Call for Response and the Call for the Views of the Solicitor General”, appears in the George Mason Law Review. Here is Marcia Coyle’s coverage (thanks to Mike McBride for this):
Marcia Coyle (article here, subscription required)
06-16-2009
So you’ve taken your client’s case all the way to the Supreme Court and the justices have asked the solicitor general of the United States whether they should grant review. What are your chances of a nod in your favor?
Not bad, according to an unusual study of two of the high court’s most important “information-gathering” tools — a call for the views of the solicitor general, known as a CVSG, and a call for a response, or CFR, to a petition for certiorari. The Court granted briefing on the merits in 34 percent of cases in which it called for the views of the solicitor general, a 37-time increase above the grant rate for all petitions. And, the justices follow the recommendation of the solicitor general to grant or deny a case roughly 80 percent of the time, according to the study.
David Thompson, currently a clerk to Justice Antonin Scalia, and Melanie Wachtell, policy director for the nonprofit Tobin Project, are both Stanford Law graduates who participated in the law school’s Supreme Court clinic. “We decided we were interested in writing a paper, and we felt if we were going to embark on a long paper to be published in a legal journal, we wanted it to be something that really contributed,” recalled Wachtell.
The materials in the Teck Camino v. Pakootas case are at the Supreme Court Project website, here. Today, the United States responded to the Court’s call for the views of the Solicitor General by arguing in favor of a denial of the petition. In some respects, this is a victory for the tribal member plaintiffs, because it upholds the Ninth Circuit’s decision that CERCLA applies to the Canadian company’s discharges. But in another respect, it is a loss, because the EPA attempted to render the case moot by refusing to enforce its own finding that Teck Camino was liable. The SG argued that the case was moot because of this action.
Turtle Talk 