Cert Petition by Western Ranchers and Farmers Challenging Reserved Water Rights [updated]

Here is the petition in Bales v. United States:

baley-cert-petition.pdf

Question presented:

Whether, against the legal backdrop of Congress’s and this Court’s recognition of the primacy of state law to determine, quantify, and administer water rights, a federal court may deem federal agency regulatory action under the Endangered Species Act to constitute the adjudication and administration of water rights for tribal purposes.

Lower court materials here.

Update:

05142020-1 PacificCoastFedFishermen Opposition Brief

OpposBriefUSA-20200514173954985_19-1134 Baley

Federal Circuit Decides Baley v. United States [Indian reserved water rights to Klamath River water predate farmers]

Here is the opinion.

Here are the briefs:

baley-opening-brief.pdf

us-brief.pdf

baley-reply-brief.pdf

hoopa-amicus-brief.pdf

klamath-tribe-amicus-brief.pdf

yurok-tribe-amicus-brief.pdf

indian-law-professors-brief.pdf

nrdc-brief.pdf

oregon-amicus-brief.pdf

pacific-coast-federation-of-fishermen-brief.pdf

Fletcher: “Indian Children and the Fifth Amendment”

Forthcoming in the Montana Law Review’s Browning Symposium issue, available at SSRN here.

An excerpt:

Many of my first memories revolve around my grandmother Laura Mamagona’s apartment in Grand Rapids, Michigan. She shared the apartment with my uncle Crockett, who was a college student. Her apartment was the upstairs room of an old house on the side of a hill on College Street. My memories are mostly of domestic activities. Cooking. Sweeping. Sitting around. Playing with trains. Leafing through Crockett’s Sports Illustrated magazine collection. Laura worked the night shift at the veteran’s hospital across from Riverside Park. Early on weekday mornings, June, my mother, would drop me off at Laura’s place in her VW bug, the first car I remember. I had my own crib at Laura’s, one I can remember escaping pretty easily. Often, Laura would sleep most of the morning while I puttered around the house. Sometimes, Crockett would be there. Family lore tells that once, June dropped me off earlier than usual and Laura had worked a little late, so I was probably there alone for a short while. I heard the story so often growing up that I can seemingly remember that day, too. This was in the mid-1970s, before Congress enacted the Indian Child Welfare Act.

Recently, my wife Wenona Singel discovered documents about Laura’s childhood home life in the National Archives in Chicago. Wenona was there to research family boarding school histories. Laura’s name as a young woman, Laura Stevens, was listed alongside several of her brothers and sisters as former students at Mount Pleasant Indian Industrial Boarding School. They were all born with the Pokagon surname, but Laura’s dad, Peter Stevens, changed their names, thinking it would help the family blend in with white America. Laura never attended the boarding school, and instead spent those years in quarantine in a hospital in Kalamazoo. We think she tested positive for tuberculosis at the boarding school intake and was diverted to quarantine. While Laura was there in the hospital during several of her early teen years, her biological mother walked on. Laura had younger brothers and sisters in her family home in Allegan County, Michigan. So, Peter—who was single then—drove to Kalamazoo and took Laura home. As a young woman, but the oldest sibling left in the house, Laura was forced to replace her mom. The archive documents contain reports by social workers who visited the house, we think, on somewhat random occasions. They were spot checks, of sorts, by the State of Michigan, to see how this Indian family with no mother in the home was coming along. The social workers detailed every aspect of the Stevens’ home in the reports. They noted how many Bibles were in the house and where they were placed. They noted how many portraits of Jesus Christ there were and the location each was hung. They reported Laura’s younger siblings were all dressed for company and quietly studying. They focused especially on teenaged Laura. There she was, sweeping the kitchen. There she was, cooking dinner. There she was, folding clothes. The social workers were impressed. Well, they were barely impressed. Laura was, after all, still an Indian. Reading the reports, one can’t help but think that young Laura Stevens was the only thing stopping the State from taking Peter Stevens’s kids away from him. Imagine if she had been out shopping on the day of the spot visit. The little Stevens kids would have been home alone, dishes in the sink and dirty clothes on the floor. Laura might have come home from shopping, and then later Peter from work, to find a home stripped of its children. However, this never came to be. Perhaps out of sheer luck, Laura was always home when the social workers showed up.

And:

The Fifth Amendment of the United States Constitution is a truly fateful provision for Indian people. On occasion, Wenona and I teach at the Pre-Law Summer Institute (PLSI) for American Indians. It’s an eight week program that serves a little bit like a summer boot camp for Indian people who are planning to matriculate to law schools in the fall. Wenona teaches Property and I teach Indian Law. Compared with the regular law school survey-the-field course in Federal Indian Law, the short class I teach at PLSI is even more truncated. I can only assign a cross-section of the “greatest hits” of Indian law Supreme Court decisions because I don’t have time to conduct a full survey. I also try to assign cases where tribal interests prevailed. It turns out tribal interests and Indian people prevail more than not when the Fifth Amendment is in play. However, there are cases where tribal interests painfully and dramatically suffer under the Supreme Court’s interpretation of the Fifth Amendment.

Federal Judge Rules ICWA Unconstitutional in Brackeen v. Zinke

Here is the opinion in Brackeen v. Zinke (N.D. Tex.):

166_DCT Order.pdf

Case page with briefs here.

A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.

Still, there will certainly be an appeal. The case is limited only to the parties involved.

Federal Court Orders Cancellation of Washington Football Team’s Trademarks Registration

Here are the materials in Pro-Football, Inc. v. Blackhorse (E.D. Va.):

53 DCT Order on Briefing Schedule

56 Pro-Football Motion for Summary J on Constitutional Claims

71 Blackhorse Motion for Partial Summary J

100 Pro-Football Cross Motion

106 Blackhorse Second Motion for Partial Summary J

109 US Motion for Summary J

118 Blackhorse Reply in Support of 71

119 Pro-Football Reply in Support of 56

126 Blackhorse Reply in Support of 106

127 US Reply in Support of 109

128 Pro-Football Reply in Support of 100

161 DCT Order

Prior posts here, here, here, here, and here.

TTAB materials here.

Federal Circuit Rejects Shinnecock Nation’s Judicial Takings Claims re: Dismissal of Land Claims under Sherrill

Here is the opinion in Shinnecock Indian Nation v. United States.

An excerpt:

Accordingly, we affirm the United States Court of Federal Claims’ determination that the Nation’s breach of trust claims are not yet ripe for review, vacate its ruling that it lacked jurisdiction over those claims, and remand the case with instructions to dismiss the breach of trust claims without prejudice.

More:

A similar analysis applies here. The Nation alleges that in applying the doctrine of laches to bar its land claim, the district court improperly “took away the Nation’s legal right to sue for compensation for its stolen land.” The Court of Federal Claims, however, is without authority to adjudicate the Nation’s claim that it suffered a compensable taking at the hands of the district court. See Allustiarte, 256 F.3d at 1352; Joshua, 17 F.3d at 380. The court has no jurisdiction to review the decisions “of district courts and cannot entertain a taking[s] claim that requires the court to scrutinize the actions of another tribunal.” Innovair, 632 F.3d at 1344 (alteration in original) (citations and internal quotation marks omitted). As the government correctly notes, “[d]eciding whether the district court’s judgment resulted in an unconstitutional taking of the Nation’s property would require the Court of Federal Claims to review the judgment and pass on its correctness.” Just as the plaintiffs’ takings claim in Allustiarte was an improper collateral attack on the judgment of the bankruptcy courts, the Nation’s proposed judicial takings claim is an attempt to mount an improper collateral attack on the judgment of the district court.

Briefs here. Lower court materials here.

Washington Football Team Argues Lanham Act/TTAB Decision Violates First and Fifth Amendments

Here is the opening brief in Pro-Football Inc. v. Blackhorse (E.D. Va.):

53 DCT Order on Briefing Schedule

56 Pro-Football Motion for Summary J on Constitutional Claims

According to the briefing schedules, briefs are going to be flying fast and furious. We’ll try to keep up.

Prior materials on the federal government intervention here, and the now-denied motion to dismiss here.

Alex Skibine on Indian Law and the New Equal Protection

Alexander Tallchief Skinine has posted “Using the New Equal Protection to Challenge Federal Control Over Tribal Lands” on SSRN.

Here is the abstract:

There are today over 55 million acres of land owned by Indian tribes or their members that the Federal government claims are held in trust by the United States for the benefit of these tribes or members. Throughout history, purporting to act as a trustee for the Indians, Congress has enacted laws severely restricting the ability of Indians to make management decisions with respect to these lands. Many of these laws, for instance impose federal approval requirements before these tribally-owned lands can be leased, sold, or otherwise encumbered. This Article calls into question the power of the federal government to impose such restrictions and argues that these laws constitute a denial of equal protection under the Due Process Clause Fifth Amendment. Since 1974, laws made specifically applicable to Indians because of their status as Indians have been held not to involve racial classifications but political ones because these laws do not affect all “Indians” but only those Indians that are also members of Indian tribes. While this holding has been welcomed by tribes when fighting to uphold laws benefitting Indians, it has also impaired their ability to make effective equal protection arguments against laws detrimental to them. The prevailing view is that in order to mount a successful equal protection challenge, Indians would have to show that such laws are not rationally tied to Congress’ unique trust obligations towards Indians. Others take the position that regular rational basis review would be applicable to such equal protection challenges. This Article disagrees with both positions and argues that the new Supreme Court Equal Protection jurisprudence as reflected in cases such as United States v. Windsor (2013) can be successfully used by Indian tribes to attack those laws imposing, only on them, federal approval requirements before such lands can be leased or otherwise encumbered. Under such new jurisprudence a law can be set aside under equal protection either if it was based on unconstitutional animus towards a vulnerable minority or if it did not pass a somewhat more intensive level of review than rational basis. What some scholars have called “rational basis with bite.”

Highly recommended!