The D.C. Circuit will hear oral argument in the challenge to EPA’s regulations applying to coal-fired plants, New Jersey v. EPA, on December 6, 2007. The panel includes Judges Rogers, Tatel, and Brown. The order on oral argument is here: D.C Circuit Order
Selected briefs are included below:
State Governments Opening Brief
Environmental Groups Opening Brief
Brief of States Supporting EPA
The conservative property rights litigation machine Mountain States Legal Foundation sued the State of Montana for its reservation-based hunting and fishing regs. The lower court dismissed the claim, applying the rational basis test (ala Morton v. Mancari). The Ninth Circuit has yet to rule. Here are the materials.
The Washburn Law Journal is currently requesting article submissions for the third issue of volume 47. This issue will be entirely focused on legal issues involving Indigenous Peoples of North America. We leave the topic intentionally broad, so that we might obtain a wide range of articles on legal issues, which include, but are not limited to, Tribal Law, Federal Indian Law and international legal concerns of indigenous populations. If you have academic pieces that you would like us to consider for publication, please send an email with your submission and contact information to Eryn Wright, Articles Editor at eryn.wright@washburn.edu. All submissions received prior to January 4, 2008 will be considered.
Thank you,
Eryn Wright
Articles Editor
Washburn Law Journal, Volume 47
This one is called Murphy v. Kickapoo and is out of the Western District of Oklahoma. It exemplifies the current problem of tribal sovereign immunity litigation — i.e., courts desperately trying to find a waiver or some reason why tribal immunity does not bar the suit, in plain opposition and conflict to clear Supreme Court precedent (Kiowa Tribe).
An interesting case (to me anyway) that has been winding its way through state, tribal, and now federal courts — a case involving an investment contract between the Grand Ronde Confederated Tribes and Strategic Wealth Management (and now its insurance company). In short, the deal between the two went bad and the parties ended up in state court, then before an arbitrator. The arbitrator ruled against the tribe, and awarded millions in attorney fees to SWM (but nothing else). The tribe refused to pay, arguing that it had not waived its immunity in relation to attorney fees, and SWM went to tribal court to enforce the arbitration award of attorney fees. The tribal court affirmed the tribe’s claim of immunity and now the case is in federal district court on a Montana 1 theory (huh?). Anyway, I wrote about this case as it went through the tribal court recently (here). And I personally know the two principals of SWM from my work at Pascua Yaqui a thousand years ago.
This may look like a tribe hiding behind sovereign immunity, but keep in mind that the Sizemore brothers (the SWM principals) prided themselves on being “experts” on federal Indian law (despite not being lawyers) and wrote the contract at issue. Moreover, the amount of atty fees awarded by the arbitrator was extraordinary (in the millions).
Contract with Strategic Wealth Management
Tribal Court of Appeals Opinion
Federal District Court Materials:
Plaintiff Motion for Summary Judgment
A few years ago, I saw a presentation by an FBI agent based out of Bismarck, North Dakota in which he described how many of the survivalist, tax protester-type of virulent anti-government “citizens” had gone way underground after 9/11 and the USA Patriot Act. A couple years later, some of them reappeared as Indians and Indian tribes — the worst kind of Indian fraud imaginable. There have always been, I suspect, people trying to be pretend Indians in an attempt to garner something (money, rights, etc.) they otherwise would not be entitled to. Here, it appears, are whites trying to hide behind tribal sovereign immunity and tribal sovereignty in general.
I wrote about these guys first in 2006 at the For the Seventh Generation blog. And every few months since, another (usually unreported) state or federal court case comes up in which these people are trying to avoid taxes or conviction because of their “Indianness.” I think it’s worthwhile to keep track of these cases.
Here’s the most recent one (I think) — Mortgage Electronic Registration Systems v. Powell, a New Jersey court of appeals case. Here’s the unreported opinion: Opinion
Here’s the relevant language in the opinion (this one tried to avoid paying a debt):
Defendant nevertheless argues that she enjoys “sovereign immunity” both as a member of an Indian tribe because she is “Wanda Lee: Ben El Powell ™©, a Pre-Columbian Indigenous Sovereign Yamassee Muur/Moor,” and as “the secured Private Party, Holder in due Course, by the Commercial Remedy in Law, Filing the UCC1 … [and has] Regained [her] Divine Sovereign Human Rights.”
Michael Blumm, David Becker, and Joshua Smith (all of Lewis & Clark) just posted, “The Mirage of Indian Reserved Water Rights and Western Streamflow Restoration in the McCarran Amendment Era: A Promise Unfulfilled.”
ABSTRACT: Western state water law has been notorious for its
failure to protect streamflows. One potential means of providing
the missing balance in western water allocation has always been
Indian water rights, which are federal rights reserved from state
laws. These federal water rights normally have priority over
state-granted rights because they usually were created in the
19th century, well before most Western state water allocation
systems were even established.
Over two decades ago, in 1983, Justice William Brennan assured
Indian tribes that their reserved water rights would not be
compromised by subjecting them to state court adjudications under
the so-called McCarran Amendment, an appropriations rider given
expansive interpretation by the Supreme Court in the 1970s and
1980s. Justice Brennan’s belief that state courts – comprised
largely of elected judges – could treat tribal claims
evenhandedly, despite the high stakes and entrenched interests
involved in Western water rights adjudications, has never been
evaluated.
This study aims to begin to fill that gap by examining the
results of six Western water right adjudications – five of which
were decided by state courts – involving the Klamath, Wind,
Yakima, Gila, and Snake Rivers, as well as Pyramid Lake. The
results suggest that Justice Brennan’s optimism was quite
misplaced: in none of the cases studied did a court order
restoration of streamflows necessary to fulfill the purpose of
the tribe’s reservation. Instead, the state courts created a
number of new legal principles to limit or diminish tribal water
rights, in an apparent effort to reduce the displacement of
current water users.
The paper concludes that in the McCarran Amendment Era tribes
must resort to extrajudicial means of restoring streamflows
necessary to fulfill the purposes of their reservations. It shows
how some tribes have employed settlements – and even state law –
to achieve partial streamflow restoration, which is all that now
seems possible in an era in which their claims are usually judged
by skeptical state court judges who face reelections in which
entrenched water users exert considerable influence.
Here’s the abstract for my talk tomorrow at U-M Law School, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”
The process by which the Supreme Court reviews petitions for writs of certiorari is intended to parse through the thousands of petitions to pick out the most important cases for the Court to decide. These include cases in which there is a split of authority, 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 error correction, or cases involving an unimportant issue are unlikely to be heard by the Court.
Since the 1980s, more and more Justices have resorted to a pool of law clerks for a write-up of each cert petition that includes a recommendation of whether or not the Court should grant cert using these factors. With the release of Justice Blackmun’s papers, the cert pool petitions from the docket years 1986 to 1993 are available for study. The views of Supreme Court clerks in the cert pool memos are often the only written documentation of the Court’s views of the vast majority of petitions that are denied.
The certiorari process creates a structural barrier to the fair adjudication of federal Indian law cases. Because over 80 percent of Indian law cases arise in three circuits, few circuit splits arise, rendering most petitions “splitless.” Moreover, since Indian law cases are often sui generis, they are labeled “factbound.” Most importantly, Supreme Court clerks do not find Indian law cases to be important in regards to the legal issues in dispute, except when the petitioner is a state or local government opposing a tribal interest such as a tribe or a tribal member.
What this means is that the clerks almost never recommend a grant when the petitioner is an Indian tribe or an Indian because the petition is “splitless,” “factbound,” or just unimportant. Conversely, when a state or local government petitions, the Court grants the petition around 75 percent of the time, regardless of whether any split exists. Perhaps this is part of the explanation for why tribal interests have lost 75 percent of their cases before the Court since 1987.
The classic case is a treaty rights case brought by a tribe. If the tribe loses below, the clerks will never find a split in authority because the treaty is unique, making the case sui generis. And Supreme Court clerks almost never find the petitions of Indians and Indian tribes to be important enough to be certworthy. But if the tribe wins below, the opponents usually are state governments, whose cert petitions are viewed favorably by the clerks.
This paper argues, as have occasional Supreme Court clerks, that the Court should recognize the special relationship that exists between the United States and Indian tribes in the certiorari process. The Court should also recognize the structural inequity of the certiorari process in the context of federal Indian law. Both of these changes could be accomplished through an amendment to Supreme Court Rule 10, which articulates the Court’s factors in considering certiorari petitions. Either the Court should grant more petitions filed by tribal interests or deny more petitions filed by tribal opponents.
Hope you can make it. The talk begins at 12:20 in Room 150 in the law school. Lunch is available. The talk is sponsored by the U-M NALSA and the Michigan Journal of Race & Law.
Last December, the federal court denied the Cherokee Nation’s motion to dismiss Vann v. Kempthorne. The Nation had argued that it was a necessary and indispensable party under FRCP 19. And, because it hadn’t waived its immunity, the Nation argued that the federal case must be dismissed. The United States argued that the case should be dismissed under the tribal court exhaustion doctrine. The court disagreed.
My newly revised paper, now titled “On Black Freedmen,” should be up on SSRN in the next few days. The paper will be part of Justice Unveiled: African American Culture and Legal Discourse (Lovalerie King & Richard Schur, eds.).
From the Abstract:
In recent years, some legal, political, and cultural questions involving American Indians have begun to overlap – and conflict – with those of African Americans. The recent Cherokee Nation of Oklahoma’s vote to strip the Black Freedmen of tribal membership generated allegations of racism and calls to force Indian tribes to comply with the Reconstruction Amendments sheds light on this question. This controversy highlights a serious problem in Indian-Black political and social relationships – the discourse of Black-White racism has begun to intrude into the discourse of American Indian law. The Reconstruction Amendments, federal civil rights statutes, and federal case law—all established as a reaction to Black-White racism –– expresses important antidiscrimination principles that can conflict with the foundational elements of American Indian law: tribal sovereignty, the trust relationship, and measured separatism. To import the law of Black-White racism into American Indian law is to destroy American Indian law and, potentially, American Indian culture.
Turtle Talk 
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