Dodging a Bullet — Roberts v. Hagener

The Supreme Court denied cert on January 12, 2009 in a little-known case called Roberts v. Hagener, out of the Ninth Circuit. The CA9 opinion is here and the Ninth Circuit briefs are here. Here is the cert petition (roberts-v-hegener-cert-petn), and an amicus brief from the Mountain States Legal Foundation supporting the petition (pacific-legal-foundation-amicus-brief).

This was a scary case, and only because the Supreme Court seems to be taking a greater interest in Indian Country the last few years. It was an attempt to convince the Court that the Fourteenth Amendment’s strict scrutiny test should apply to state game laws that recognize American Indian treaty rights. Of course, it is settled law that this is not the case, dating at least back to the 1970s treaty rights cases, and to Morton v. Mancari. But with the Supreme Court, nothing is really settled.

Anyway, dodged a bullet.

Roberts v. Hagener — CA9 Upholds Montana State Hunting Laws

The Ninth Circuit, in an unpublished disposition, affirmed a district court decision upholding Montana’s ban on non-Indian hunting on the Crow Reservation. The opinion is unpublished.

Here is a link to the briefs.

Constitutional Challenge to State Hunting & Fishing Regs in Montana in CA9

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.

Roberts v. Hagener District Court Opinion

Roberts Appellant Brief

State of Montana Brief

Roberts Reply Brief