Dollar General v. Mississippi Choctaw Cert Petition on SCOTUSBlog Watch List


I wondered when I learned that Tom Goldstein is co-counsel for the petitioners when this petition would end up as a SCOTUSblog “Petition of the Day.” As might be well known to TT readers, SCOTUSblog is the best daily source of news on the Supreme Court. But it is also (or was) a tool for Mr. Goldstein to drum up business. The blog recently make some headlines in its effort to acquire/obtain/earn a Supreme Court press credential, and was denied. Mr. Goldstein’s passionate and sophisticated response is well worth the read. As a question of journalism, I strongly support SCOTUSBlog’s efforts. It doesn’t bother me that SCOTUSblog-as-client development tool might somehow affect SCOTUSblog-as-journalist.

For what appears to be the first time, Mr. Goldstein is representing a Supreme Court petitioner against tribal interests, and so to the extent that it means anything at all, the tribal interests here are adversely affected by the SCOTUSblog-as-journalism outlet and SCOTUSBlog-as-Supreme Court advocate dynamic. There’s not enough information before me to make a conclusion as to whether that dynamic will affect the Court’s certiorari decision at the long conference here in a few weeks.

Here is a list of TT posts recognizing an Indian law “Petition to Watch” as identified by SCOTUSblog (grants are in red): Continue reading

Amy Howe at SCOTUSBlog on Bay Mills

Here, “Opinion details: Victory for Native American tribes . . . for now?

An excerpt:

The Court acknowledged the “apparent anomaly” in the law:  although states can sue tribes for illegal gaming activity on Indian lands, they cannot sue them for the same activity off Indian lands.  “But,” the Court continued, “this Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address.”  And – significantly – even if the state can’t sue a tribe for off-reservation illegal gaming, it still “has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.”  Most state laws will apply to Indians off reservation, for example:  Michigan “could, in the first instance, deny a license” for an off-reservation casino; if the tribe went ahead with the project anyway, it could sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws.  Moreover, states also could seek a waiver to allow lawsuits for off-reservation gaming activity as part of its compact with the tribe regarding on-reservation gaming.

SCOTUSblog Oral Argument Recap of Adoptive Couple v. Baby Girl


[Blatt’s]  line of argument fell flat with at least three Justices – Scalia, Ginsburg, and Sotomayor – who throughout the argument generally regarded the case as covered by the plain language, even if not the purpose, of ICWA.  Justice Elena Kagan’s vote was less certain, but she also seemed to at least be leaning that way:  she pressed both Blatt and Deputy Solicitor General Ed Kneedler, representing the federal government as an amicus, to explain why, if Father is a “parent” for purposes of ICWA, he wouldn’t also be able to rely on the protections of Sections 1912(d) and (f).  What, she asked Blatt, is the point of labeling Father as a “parent” if he doesn’t have any rights as such?  Returning to this topic again later, Justice Kagan suggested that the Adoptive Couple’s construction of the law would effectively create two classes of parents under the statute – those with the protections provided in subsections (d) and (f), and those without.  If Congress intended to do so, she queried, why didn’t it say so more explicitly?

At least three other Justices – the Chief Justice and Justices Breyer and Alito – seemed inclined to agree with Blatt and interpret ICWA more narrowly, particularly given what they clearly regarded as Baby Girl’s somewhat tenuous link to the Indian Tribe in question, the Cherokee Nation.  Thus, the Chief Justice expressed some astonishment that “one drop of blood” could “trigger[] all these rights” under ICWA; both he and Justice Alito also tried to test the limits of the position taken by Charles Rothfeld, representing the Father, by asking him about a scenario in which the Tribe would allow virtually anyone to join the Tribe, regardless of whether the would-be members had any actual Indian ancestry.  On this point, Justice Scalia chimed in to suggest that the hypothetical was a “null set” because there are federal criteria, including some blood relationship, that must be met for a Tribe to receive federal recognition.  Rothfeld countered that in this case Father has significant ties to the Cherokee Nation, but in any event this is an issue that Congress or the executive branch can address.

Match-E-Be-Nash-She-Wish of Pottawatomi Indians v. Patchak SCOTUSblog Petition of the Day

SCOTUSblog’s Petition of the Day:

The petitions of the day are:
Title: Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak
Docket: 11-246
Issue(s): (1) Whether the Quiet Title Act and its reservation of the United States’ sovereign immunity in suits involving “trust or restricted Indian lands” apply to all suits concerning land in which the United States “claims an interest,” 28 U.S.C. § 2409a(a), or whether they apply only when the plaintiff claims title to the land; and (2) whether prudential standing to sue under federal law can be based on either (i) the plaintiff’s ability to “police” an agency’s compliance with the law or (ii) interests protected by a different federal statute than the one on which suit is based.
Certiorari stage documents:

Opinion below (D.C. Cir.)
Petition for certiorari

Title: Salazar v. Patchak
Docket: 11-247
Issue(s): (1) Whether 5 U.S.C. § 702 waives the sovereign immunity of the United States from a suit challenging its title to lands that it holds in trust for an Indian Tribe; and (2) whether a private individual who alleges injuries resulting from the operation of a gaming facility on Indian trust land has prudential standing to challenge the decision of the Secretary of the Interior to take title to that land in trust, on the ground that the decision was not authorized by the Indian Reorganization Act.
Certiorari stage documents:

Opinion below (D.C. Cir.)
Petition for certiorari

SCOTUSblog commentary on US v. TON — “Apparent Disregard for Judicial Minimalism”

From SCOTUSblog:

The most striking feature of Tuesday’s opinion in United States v. Tohono O’odham Nation (No. 09-846) is the apparent disregard for judicial minimalism in Justice Kennedy’s opinion for the Court.  The Court, in an opinion joined by Chief Justice Roberts and Justices Scalia, Thomas, and Alito, held that 28 U.S.C. § 1500, which prohibits a suit in the Court of Federal Claims (CFC) on a claim “for or in respect to which” the plaintiff has a suit pending in another court, applies to suits that share operative facts, even if they request different relief.  The Court need not have decided that question, however, unless it confronted two suits with no remedial overlap, for precedent had already established that Section 1500 bars the new suit if the two suits share operative facts and request overlapping relief.

The Court’s opinion could therefore be characterized as abandoning judicial minimalism by refusing to decide the case on the narrowest possible grounds.  The opinion refuses to even mention the preliminary question on which the oral argument focused: whether the Tohono O’odham Nation’s two suits—one in the CFC seeking money damages for the government’s breach of trust while managing Nation assets, and the other in the U.S. District Court for the District of Columbia seeking an equitable accounting and an accompanying payment of any shortfall for the same breach of trust—do in fact seek overlapping relief.  If so, that question could have been dispositive – as it would have been for Justice Sotomayor, who filed an opinion concurring in the judgment that was joined by Justice Breyer.

Why would the Court decline to decide whether the two suits seek similar relief?  The opinion itself provides no particular reason, other than a desire to move past the preliminary question to clarify the scope of Section 1500:

To continue to reserve the question [of whether § 1500 bars suits with no remedial overlap] would force the CFC to engage in an unnecessary and complicated remedial inquiry, and it would increase the expense and duration of litigation. The question thus demands an answer, and the answer is yes.

But comparing different types of relief is not difficult:  as the concurrence points out, the CFC has been doing just that for almost fifty years in applying Section 1500.  Instead, it is likely that the Court wanted to avoid deciding whether an equitable order to pay money is the same as money damages.

One possible reason emerges when one remembers that a distinction between those two forms of relief is the foundation of the district court’s jurisdiction over any suits claiming money from the government.  According to 5 U.S.C. § 702, district courts can hear claims against the United States only if they “seek[] relief other than money damages.”  Claims for money damages, by contrast, must be brought in the CFC. After Bowen v. Massachusetts (1988), however, a plaintiff could sue the United States for money outside of the CFC so long as he asked for an equitable order to pay money.  Such a suit, the court reasoned, is distinct from a suit for money damages.  Subsequently, lower courts have applied that reasoning to extend Bowen and allow suits against the government for money in the district court for a variety of plaintiffs, from government contractors and employees to claimants under many government spending programs.

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A Note on SCOTUSBlog

Readers of Turtle Talk may wonder why we link to SCOTUSblog so frequently.

We do so for various reasons, but always with trepidation. First, without doubt, SCOTUSblog is the most widely-read blog on the Supreme Court in the known universe. The authors tend to be experienced Supreme Court practitioners and observers, and they are usually non-partisan in their commentaries. As a result, recent chatter on the internet suggests that current Supreme Court clerks, when at a loss to determine what cases are certworthy, look to SCOTUSblog for guidance (and possible other blogs). We think it is critically important that Indian Country knows when SCOTUSblog is paying attention to a particular petition. It is more likely than not that someone in the Supreme Court’s chambers is paying attention, too.

Second, on some occasions, we have posted a link to SCOTUSblog commentary with critical commentary of our own. My experience with studying cert pool memos indicated to me that, on a few occasions, the clerks simply get the law wrong. Many times, for financial or strategic reasons, tribal interests who are respondents to cert petitions do not file an opposition to the cert petition (or are limited in their capacity to raise all the relevant arguments). We don’t know if Turtle Talk is read by Supreme Court clerks, but if it is, there will at least be an informal, occasional cert opposition out there.

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