federal indian law

ICT Editorial on Cert Pool Memos & Indian Law

Matthew L.M. Fletcher2 Comments

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.

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Reflections on Jonathan Lethem’s Essay “Defending The Searchers”

Matthew L.M. Fletcher1 Comment

I recently read Jonathan Lethem’s essay from his book “The Disappointment Artist.” It’s the opening essay in this collection of self-reflective essays (nice way of saying navel-gazing, kind of like this blog).

My view of this essay is that it is part of the standard “liberal” or “enlightened” commentary about the horrors that have been visited upon the Indigenous peoples of this hemisphere and especially this continent. In other words — yes, we did the Indians wrong, but so what?

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WSJ Article on Tribal Judges

Matthew L.M. Fletcher

Thanks to Mike McBride and June Mamagona Fletcher, you can download the entire article here without having to register with the Journal:

Wall Street Journal Article on Tribal Judges and Federal Indian Law

Ottawa Tribe of Oklahoma v. Speck Materials

Matthew L.M. Fletcher1 Comment

Here are materials relating to the Ottawa Tribe of Oklahoma’s attempts to establish hunting and fishing rights to their aboriginal homelands in Ohio.

District Court Opinion Denying Ohio’s Motion to Dismiss

Continue reading →

CRS Reports — Additional Available Reports

Matthew L.M. Fletcher

We previously offered links to Congressional Research Service reports related to Indian law here.

Since then, we’ve located a few more:

Federal Taxation of Tribes and Indians (2007)

American Indian Education Programs (2007)

Religious Freedom Restoration Act (2006)

Small Business Administration Programs (2007)

Blackmun Digital Archive Research — A Concordance of Indian Law Cases (1986-1993)

Matthew L.M. Fletcher

Justice Blackmun’s papers are starting to appear online. The docket sheets and the cert pool memos of each case in the docket years 1986 through 1993 are now available at this location. However, in order to find anything, you have to know the docket numbers.

I’ve listed all the Indian law cases I could find for those docket years. I used the United States Law Week categorization system, which puts Indian law cert petitions in the “Indians” or (now) “Native Americans” category. It does not do this for unpaid petitions, so my list is non-exhaustive. However, I captured a few important unpaid cert petitions because they were cross-referenced in other cert pool memos.

You can get this concordance at our occasional papers series website. It’s no. 2007-15.

It is a work in progress. Any additional information you have to make the concordance a better document would be much appreciated.

Marilyn Vann Talk Materials

Matthew L.M. Fletcher4 Comments

On November 9, 2007, Marilyn Vann spoke about the history of the Cherokee Freedmen here at MSU law college. As she did during her talk at last April’s Federal Bar Association’s Indian Law Conference, she presented a slide show of numerous materials.

Here are the materials — Marilyn Vann Materials

And here is a description of each page in the materials provided by Marilyn: Continue reading →

Federal Indian Law Cert Petitions — A Comparison of State Petitions and Tribal Petitions (1997 to present)

Matthew L.M. Fletcher

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

Supreme Court Outcomes: Federal Indian Law from 1959

Matthew L.M. Fletcher

Here’s my version of the wins and losses in the Supreme Court from 1959’s Williams v. Lee to 1987’s California v. Cabazon Band. And then from Cabazon Band to the last case (Wagnon). I conclude (similar to Alex Skibine in the North Dakota Law Review and David Getches before him in the California Law Review and the Minnesota Law Review), that tribes have won 12 out of 48 cases (I counted the “ties” as losses because they are more so a loss than anything else) since Cabazon. Prior to and including Cabazon all the back to Williams, tribes won 49 out of 82 cases, a 60 percent “win” rate.

1959-1987

Williams v. Lee (1959) — W

Federal Power Commission v. Tuscarora Indian Nation (1960) — L

United States v. Grand River Dam Authority (1960) — W

Seymour v. Superintendent (1962) — W

Metlakatla Indian Community v. Egan (1962) — W

Organized Village of Kake v. Egan (1962) — L

Arizona v. Californian (1963) — W

Warren Trading Post v. Arizona State Tax Commission (1965) — W

Poafpybitty v. Skelly Oil (1968) — W

Peoria Tribe v. United States (1968) — W

Puyallup Tribe v. Dept. of Game (1968) — L

Menominee Tribe v. United States (1968) — W

Choctaw Nation v. Oklahoma (1970) — W

Tooahnippah v. Hickel (1970) — W

Kennerly v. District Court (1971) — W

United States v. Southern Ute (1971) — L

Affiliated Ute Citizens v. United States (1972) — W

United States v. Jim (1972) — L

Mescalero Apache Tribe v. Jones (1973) — L

McClanahan v. State Tax Commission of Arizona (1973) — W

Keeble v. United States (1973) — W

United States v. Mason (1973) — L

Mattz v. Arnett (1973) — W

Department of Game v. Puyallup Tribe (1973) — L

Oneida Indian Nation v. Oneida County (1974) — W

Morton v. Ruiz (1974) — L

Morton v. Mancari (1974) — W

United States v. Mazurie (1975) — W

Antoine v. Washington (1975) — W

DeCoteau v. District Court (1975) — L

Fisher v. District Court (1976) — W

Colorado River Water Conservation Dist. v. United States (1976) — L

Moe v. Confederated Salish and Kootenai Tribes (1976) — W

Northern Cheyenne Tribe v. Hollowbreast (1976) — W

Cappaert v. United States (1976) — W

Bryan v. Itasca County (1976) — W

Delaware Tribal Business Committee v. Weeks (1977) — W

Rosebud Sioux Tribe v. Kneip (1977) — L

United States v. Antelope (1977) — W

Puyallup Tribe v. Dept. of Game (1977) — W

Finch v. United States (1977) — GVR

Oliphant v. Suquamish Indian Tribe (1978) — L

United States v. Wheeler (1978) — L

Santa Clara Pueblo v. Martinez (1978) — W

United States v. John (1978) — W

Washington v. Yakima Indian Nation (1979) — L

Wilson v. Omaha Tribe (1979) — L

Washington v. Fishing Vessel (1979) — W

State of Idaho ex rel. Evans v. Oregon & Washington (1980) — L

United States v. Clarke (1980) — L

United States v. Mitchell (1980) — L

Andrus v. Glover Constr. Co. (1980) — L

Washington v. Confederated Colville Tribes (1980) — L

Central Machinery v. Arizona State Tax Commission (1980) — W

White Mountain Apache Tribe v. Bracker (1980) — W

United States v. Sioux Nation (1980) — W

Montana v. United States (1981) — L

Merrion v. Jicarilla Apache Tribe (1982) — W

Ramah Navajo School Board v. Bureau of Revenue of New Mexico (1982) — W

Arizona v. California (1983) — W

New Mexico v. Mescalero Apache Tribe (1983) — W

Nevada v. United States (1983) — L

United States v. Mitchell (1983) — W

Rice v. Rehner (1983) — L

Arizona v. San Carlos Apache Tribe (1983) — L

Solem v. Bartlett (1984) — W

Escondido Mut. Water Co. v. Mission Indians (1984) — L

Three Affiliated v. Wold Engineering (1984) — W

United States v. Dann (1985) — L

Oneida County v. Oneida Indian Nation (1985) — W

Kerr-McGee v. Navajo Tribe (1985) — W

National Farmers Union v. Crow Tribe (1985) — W

Montana v. Blackfeet Tribe(1985) — W

Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana (1985) — L

Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe (1985) — L

Cal. State Board of Equalization v. Chemehuevi Indian Tribe (1985) — L

South Carolina v. Catawba Indian Tribe (1986) — L

United States v. Mottaz (1986) — L

United States v. Dion (1986) — L

Bowen v. Roy (1986) — L

Three Affiliated v. Wold Engineering (1986) — W

Iowa Mutual v. LaPlante (1987) — W

California v. Cabazon Band (1987) — W

49 wins — 33 losses — 60 percent “win” rate

1987-present

United States v. Cherokee Nation (1987) — L

Hodel v. Irving (1987) –L

Lyng v. Northwest Indian Cemetery (1988) — L

Employment Division v. Smith (1988) — L

Oklahoma Tax Commission v. Graham (1989) — L

Mississippi Band of Choctaw Indians v. Holyfield (1989) — W

Cotton Petroleum v. New Mexico (1989) — L

Brendale v. Yakima Indian Nation (1989) — L

Employment Division v. Smith (1990) — L

Wyoming v. United States (1990) — W

Duro v. Reina (1990) — L

Oklahoma Tax Commission v. Citizen Potawatomi (1991) — W

Blatchford v. Native Village of Noatak (1991) — L

County of Yakima v. Yakima Indian Nation (1992) — L

Negonsott v. Samuels (1993) — L

Oklahoma Tax Commission v. Sac and Fox Nation (1993) — W

Lincoln v. Vigil (1993) — L

South Dakota v. Bourland (1993) — L

Hagen v. Utah (1994) — L

Department of Taxation and Finance of New York v. Milhelm Attea (1994) — L

Oklahoma Tax Commission v. Chickasaw Nation (1995) — W

Seminole Tribe v. Florida (1996) — L

Babbitt v. Youpee (1997) — L

Strate v. A-1 (1997) — L

Idaho v. Coeur d’Alene Tribe (1997) — L

South Dakota v. Yankton Sioux Tribe (1998) — L

Alaska v. Native Village of Venetie (1998) — L

Montana v. Crow Tribe (1998) — L

Kiowa Tribe v. Manufacturing Techs. (1998) — W

Cass County v. Leech Lake Band of Chippewa Indians (1998) — L

Arizona Dept. of Revenue v. Blaze Constr. (1999) — L

Minnesota v. Mille Lacs (1999) — W

Amoco Production v. Southern Ute (1999) — L

Rice v. Cayetano (2000) — L

Arizona v. California (2000) — W

Dept. of Interior v. Klamath Water Users (2001) — L

C&L Enters v. Citizen Potawatomi (2001) — L

Atkinson Trading v. Shirley (2001) — L

Idaho v. United States (2001) — W

Nevada v. Hicks (2001) — L

Chickasaw Nation v. United States (2001) — L

United States v. White Mountain Apache Tribe (2003) — W

United States v. Navajo Nation (2003) — L

Inyo County v. Bishop Paiute (2003) — L

United States v. Lara (2004) — W

Cherokee Nation v. Leavitt (2005) — W

Sherrill v. Oneida Indian Nation (2005) — L

Wagnon v. Prairie Band Potawatomi Nation (2005) — L

12 wins — 36 losses — 25 percent win rate

US v. Washington — Culverts Materials

Matthew L.M. Fletcher3 Comments

In August, Judge Martinez granted the Stevens treaty tribes’ motion for summary judgment in the culvert subproceeding. Here are some of those materials:

Tribal Motion for Summary Judgment

State Motion for Summary Judgment

District Court Opinion