original jurisdiction

Supreme Court Colloquy on Indian Tribes as Intervenors in Original Jurisdiction Cases

Matthew L.M. Fletcher

Today, the Supreme Court held that two non-sovereign entities may intervene in an original jurisdiction case (South Carolina v. North Carolina). Of note, it appears that for the first time, the Court allowed a non-sovereign entity to intervene in an original jurisdiction case. The majority’s reference to Indian tribes is trouble, especially in light of the dissent’s response.

Here is the majority:

Over the “strong objections” of three States, for example, the Court allowed Indian tribes to intervene in a sovereign dispute concerning the equitable apportionment of the Colorado River. Arizona v. Cali-fornia, 460 U. S., at 613. The Court did so notwithstanding the Tribes’ simultaneous representation by the United States. Id., at 608–609, 612.

Seems relatively innocuous, until one reads the dissent:

The result is literally unprecedented: Even thoughequitable apportionment actions are a significant part of our original docket, this Court has never before granted intervention in such a case to an entity other than a State, the United States, or an Indian tribe. Never. That is because the apportionment of an interstate waterway is a sovereign dispute, and the key to intervention in such an action is just that—sovereignty. The Court’s decision to permit nonsovereigns to intervene in this case has the potential to alter in a fundamental way the nature of our original jurisdiction, transforming it from a means of resolving high disputes between sovereigns into a forum for airing private interests.

And later:

Take Arizona v. California, 460 U. S. 605 (1983). There we allowed several Indian Tribes to intervene in a water dispute. Id., at 615. As the Court in that case made clear, however, the Indian Tribes were allowed to intervene because they were sovereign entities. Ibid. The Court distinguished New Jersey v. New York on that veryground. See 460 U. S., at 615, n. 5.

It seems the majority implicitly characterized Indian tribes (and the City of Port Arthur, Texas) as a non-sovereign in order to stress the non-importance of today’s decision. One shouldn’t read too much into this, of course. But still…. Uggh.

Filings in Michigan Asian Carp Suit

Matthew L.M. Fletcher

From SCOTUSBlog:

In a new phase of the decades-long feud over the environmental health of the Great Lakes, Michigan has sued Illinois directly in the Supreme Court, this time over Michigan’s worries about the invasion of a fish species threatening to local fish populations.  As an Original lawsuit, the case will be tried directly in the Supreme Court, if the Justices agree to let Michigan file its complaint.  (News articles describing the lawsuit are linked in the blog’s Tuesday Roundup, see below.)

Here is the question presented in the lawsuit:  “Whether, because of changed circumstances, the Court should reopen Nos. 1, 2, and 3, Original, to consider Michigan’s request for a Sujpplemental Decree to address a new and substantial infringement of Michigan’s rights — the threatened invasion of the Gr;eat Lakes by injurious fish species — resulting from the Lake Michigan diversion project created and as now maintained by Illinois, the [Metropolitan Water Recalamation District of Greater Chicago] District, and the {U.S. Army} Corps {of Engineers] that is the subject of this case.”

A fact sheet describing the background of the new fish controversy ishere. A news release from the Michigan attorney general’s office is here.  The text of a motion for a preliminary injunction is here The lawsuit itself — technically, a motion to reopen a 1980 Supreme Court decree and to issue a new ruling on the fish mgiration question – can be found here. A 142-page appendix is here.

Tongue River Dispute — Montana v. Wyoming Orig.

Matthew L.M. Fletcher

This case arises out of a dispute between the two states over the Tongue River, which serves as a source of water for the Northern Cheyenne: “The Northern Cheyenne, whose primary water source is the Tongue River, lent their support to Montana in a move to protect their own claims. The compact specifically says that nothing in the document ‘shall be so construed or interpreted as to affect adversely any rights to the use of the waters of the Yellowstone River and its tributaries owned by or for Indians, Indian tribes and their reservations.'” (from the Billings Gazette).

Here is the government’s brief favoring Montana’s position.

Other briefs will be posted as they come on line.