From BLT here.
Osage Trust Suit Settlement
From BLT here.
Osage Nation
Tennessee Court of Appeals Affirms Termination of Parental Rights in ICWA Matter
Here is the opinion in In re Kentavious M., involving the Osage Nation.
Osage Tribe Amicus Brief in U.S. v. Tohono O’odham Nation
Here: 09-846 Osage Nation.
Oklahoma Supreme Court Vacates Injunction against Oklahoma Tax Commission from Enforcing Tax Compact against Osage Smokeshops
Here is the opinion in Feather Smoke Shops v. Oklahoma Tax Commission.
An excerpt from the dissent:
¶2 I believe the “dispute” is not subject to arbitration because it is not one “arising in the interpretation or performance of th[e] Compact.” I reach this conclusion because the undisputed material facts show that the State, through the actions of the Oklahoma Tax Commission, is simply in breach of the unambiguous “favored nations” provision of the Compact. This provision grants the Osage Nation the “option” to “automatically… incorporate” more favorable terms of a tobacco tax compact with another Indian tribe into the Osage Nation Compact. The State, through the Oklahoma Tax Commission, admits that the Osage Nation exercised this “option” and chose to incorporate the favorable terms of the State’s compacts with the Cherokee Nation and Choctaw Nation, inter alia. The Oklahoma Tax Commission recognizes that this action constituted an amendment to the Compact, including the “exception rate” of $.58 per carton. Nothing in the Compact ties or burdens such amendment of the Compact to the continuation of any comparable terms that may have been previously incorporated from another compact, like the Pawnee Compact in question.
¶3 In my opinion, there is no uncertainty about the meaning of any term in the Compact, nor any doubt about the performance due under any term. There is simply unjustified refusal of the Oklahoma Tax Commission to perform its ministerial duties under the Compact and a suit in district court for injunctive relief is one of the appropriate remedies for such a breach of contract. Under the record presented, I do not believe the trial court either exceeded its jurisdiction or abused its discretion in issuing the injunction.
District Court Refuses to Dismiss ERISA Claim against Tribal Business
Here are the materials in Vandever v. Osage Nation Enterprises, out of the Northern District of Oklahoma. The court rejected a magistrate report and recommendation to dismiss an ERISA claim against ONE and the Osage Nation, and also rejected a request by the Nation to require the plaintiff to exhaust tribal court remedies.
No Divided Argument in Carcieri v. Kempthorne
The Supreme Court released its other orders from last Monday’s long conference.
The motion of petitioners Donald L. Carcieri, Governor of Rhode Island, and the State of Rhode Island for divided argument is denied. The motion of petitioner Town of Charlestown for divided argument is denied. The motion of Narragansett Indian Tribe for leave to participate in oral argument as amicus curiae and for divided argument is denied.
So I assume the State will let Ted Olson on behalf of the governor argue the case against Ed Kneedler on the government’s side.
Here are the cert denials:
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.
Osage Nation v. Oklahoma – CA10
The Osage Nation sued the State of Oklahoma and Oklahoma Tax Commission officials seeking an injunction against the collection of state income taxes against Osage members in Osage Indian Country. The district court denied the state’s Eleventh Amendment motion to dismiss. The CA10 reversed as to the State, but very grudgingly affirmed as to the officials, relying on Ex parte Young.
Turtle Talk 