SCOTUSBlog’s Petitions to Watch for the Long Conference

Here is the list of the petitions to watch according to SCOTUSBlog for the long conference. It includes four Indian law cases, Kickapoo v. Texas, Hawaii v. Office of Hawaiian Affairs, US v. Navajo Nation, and Kemp v. Osage Nation.

We agree (see here).

2008 Term Preview: The Long Conference — September 29, 2008

On September 29, 2008, the Supreme Court will convene for what is known as the long conference. Here is where the Court meets privately to make decisions on the summer backlog of cert petitions. There are EIGHT Indian law-related cert petitions scheduled for review in the long conference. There is a very good chance that one or more of these petitions will be granted.

1. Hawaii v. Office of Indian Affairs (07-1372)

This petition has a fairly good chance to be granted.

The first factor weighing in favor of a grant is that a state government is bringing the petition. The second factor weighing in favor are the three amicus briefs supporting the petition, often an attention getter for the clerks. Moreover, one of the amicus briefs is signed by 30 states and a U.S. territory, yet another point in favor of a grant. The wild card factor is that a similar petition reached the Court in the 2006 Term, but that one was settled out of court and dismissed (Doe v. Kamehameha Schools). Moreover, there is a case similar to Doe that has just been filed, and the Court might want to wait for that one (not sure why).

2. Ho-Chunk Nation v. Wisconsin (07-1402)

I don’t think this one has much chance to be granted.

It’s a sort of an interlocutory appeal, meaning the lower court hasn’t even reached the merits yet. And it’s being brought by an Indian tribe, which doesn’t appear to impress the Justices much. Finally, the petition cites me for the proposition that this is an important case, always a serious mistake. 8)

3. Kemp v. Osage Nation (07-1484)

This has a fairly good chance of being granted, too, but maybe not as good as the Hawaii case.

Kemp is actually the Oklahoma Tax Commission, always a Supreme Court favorite (remember the 1990s, Citizen Potawatomi, Sac and Fox, and Chickasaw Nation?). So, it’s a state government bringing the petition, weighing in favor of a grant. Moreover, the subject matter of the case is state sovereign immunity and the Ex parte Young exception. Again, a factor favoring a grant. But there doesn’t seem to be a split in authority. And the state’s argument that the Tenth Circuit’s decision conflicts with Idaho v. Coeur d’Alene seems to be a stretch, because this case is about taxation, and that one was about actual title to land.

4. Kickapoo v. Texas (07-1109)

This one has a slight chance for a grant.

I’d have said all along (and I did, I think) that this case has no chance for a grant. And then the US filed an unusual brief arguing for a denial, but making a powerful case for why the CA5 got this one wrong on every level. If the US brought the petition (it didn’t), then maybe there would be a grant on that argument alone. Baffling. Texas initially refused to file a cert opposition (probably because they read my blog entry 🙂 ), but then the Court called for a response.

Still, there’s no split. And other cases involving the same exact question are in the pipeline in Florida and Alabama. The Court will probably let this one percolate below.

5. Klamath Tribes v. PacificCorp (07-1492)

This one has no chance.

First, it’s being brought by an Indian tribe, not a favored petitioner. Second, Klamath is bringing a federal common law cause of action. The Court doesn’t favor those, either. And third, there’s no split in authority. Poor fish. 😦

6. Matheson v. Gregoire (08-23)

Again, no chance.

First, the case is being brought by an individual Indian who is challenging the fact that his tribe entered into a tax agreement with the state. He could challenge the agreement in tribal court (maybe he is), but instead he’s going to federal court. Second, there’s no split at all.

7. South Fork Band v. United States (08-100, 08-231)

No chance.

This is a case trying to reopen parts of the odious United States v. Dann decision from 20 years ago. The Court doesn’t like that, either.

8. United States v. Navajo Nation (07-1410)

Very, very good chance for a grant.

First, the petition is brought by the United States, which is the premier party in the Court’s eyes. I suspect far more than half of the US’s petitions are granted, and I’m sure all but a very few are seriously considered by the Court in conference. Second, this is the continuation of a case the Court thought to be important in 2002, U.S. v. Navajo Nation I. That case (and this one, too) involves a judgment against the United States that could reach one billion dollars, if interest attaches (a mere $600 million if it doesn’t). Third, though the Court technically left open several questions after Navajo Nation I, it strongly stamped down the first theory brought by the Navajo Nation. One suspects the Court doesn’t like seeing a case reaching an outcome it rejected once come back again under a second theory. We could either have an outcome like U.S. v. Mitchell (tribe loses first time, comes back second time and wins with new theory), or N.Y. v. Milhelm Attea (Court repeatedly instructs lower court to find against tribe, only to be forced to do the dirty work itself).

Either way you have a grant.

Oklahoma Sovereign Immunity Case

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).

Kickapoo Motion to Dismiss

Opposition to Kickapoo Motion

Reply Brief

District Court Opinion