Cert Petition in Diné Citizens against Ruining Our Environment v. Navajo Transitional Energy Co. LLC

Here:

Question presented:

Whether Federal Rule of Civil Procedure 19 requires dismissal of an Administrative Procedure Act action challenging a federal agency’s compliance with statutory requirements governing federal agency decisions, for failure to join a non-federal entity that would benefit from the challenged agency action and cannot be joined without consent.

Lower court materials here.

FMC Corp. v. Shoshone-Bannock Tribes Cert Petition

Here:

cert-petition.pdf

Questions presented:

1. Whether the Ninth Circuit correctly holds that tribal jurisdiction over nonmembers is established whenever a Montana exception is met, or whether, as the Seventh and Eighth Circuits have held, a court must also determine that the exercise of such jurisdiction stems from the tribe’s inherent authority to set conditions on entry, preserve tribal self-government, or control internal relations.

2. Whether the Ninth Circuit has construed the Montana exceptions to swallow the general rule that tribes lack jurisdiction over nonmembers.

Lower court materials here.

Cert Petition by Convicted RICO Defendant in Payday Lending Scheme Invoking Tribal Immunity

Here is the petition in Neff v. United States:

neff-cert-petition.pdf

us-waiver-letter.pdf

Questions presented:

1. Does a misrepresentation about the true identity of the owner of a business during settlement negotiations to resolve a civil lawsuit constitute a scheme to defraud the litigant of money or property in violation of the mail and wire fraud statutes?
2. Is the doctrine of tribal sovereign immunity wholly inapplicable in a circumstance where payday loans are made by a Native American tribe in affiliation with an entity acting as an “arm of the tribe” where such loans are made at interest rates in excess of state regulations, thus rendering the loans ipso facto unlawful debts in violation of the RICO statute?
3. Does the government have to prove willfulness to establish a RICO conspiracy to collect an unlawful debt?
Lower court materials here.

Cert Petition by Western Ranchers and Farmers Challenging Reserved Water Rights

Here is the petition in Bales v. United States:

baley-cert-petition.pdf

Question presented:

Whether, against the legal backdrop of Congress’s and this Court’s recognition of the primacy of state law to determine, quantify, and administer water rights, a federal court may deem federal agency regulatory action under the Endangered Species Act to constitute the adjudication and administration of water rights for tribal purposes.

Lower court materials here.

New Scholarship: “The Loudest Voice at the Supreme Court”

Darcy Covert & A.J. Wang have posted “The Loudest Voice at the Supreme Court: The Solicitor General’s Dominance of Amicus Oral Argument” on SSRN. The NYTs profiled the article here.

Here is the abstract:

Over the last century, amicus participation in oral argument at the Supreme Court has become common, but only for one litigant: the Office of the Solicitor General of the United States (“OSG”). Between the 2010 and 2017 Terms, the Court granted only 8 of 26 motions for amicus oral argument by litigants other than OSG. During that time, it granted 252—all but 1—of such motions by OSG. Since the early 2000s, OSG has often argued more frequently in a Term as an amicus than as a party.

This Article presents the first history of amicus oral argument and how OSG came to dominate this practice. Drawing on an original database of every motion for amicus oral argument filed from 1889 through 2017, we offer the first quantitative history of the practice of amicus oral argument before the Court. We supplement this with a qualitative account of the historical and modern use of amicus oral argument based on archival research and interviews with frequent Supreme Court litigators, including current and former members of OSG. We find that the Court grants OSG virtually unlimited access to amicus oral argument without regard to the strength of the federal interest or the political nature of a given case.

The Court’s special solicitude towards OSG has profound consequences. The Solicitor General already occupies a special role at the Court as the “Tenth Justice.” We argue that OSG’s seemingly unlimited ability to appear before the Court systematically biases the perspectives heard at the Court and therefore undermines due process principles and the adversarial process. We conclude with a proposal for reform.

South Dakota Cert Petition in IGRA Preemption Case

Here is the petition in Noem v. Flandreau Santee Sioux Tribe:

noem-v-flandreau-cert-petition.pdf

appendix-2.pdf

Question presented:

Does the  Bracker test currently serve as a consistent and predictable rule of law in light of the exponential expansion of Indian gaming since 1988 and the fiscal demands the industry now places on state budgets?

Lower court materials here.

McGirt v. Oklahoma Background Materials

Merits Briefs:

Petitioner’s Brief

Respondent’s Brief

2020 03 20 McGirt Joint Motion for Divided Argument and Enlargement of Time

Amicus Briefs in Support of Petitioner:

2020 02 11 Amicus Brief Brad Henry et al

2020 02 11 Amicus Brief Historians Legal Scholars Cherokee Nation

2020 02 11 Amicus Brief National Ass’n Criminal Defense Lawyers

2020 02 11 Amicus Brief National Indigenous Women’s Resource Center et al

2020 02 11 Amicus Brief NCAI

2020 02 11 Amicus Brief of Muscogee Creek Nation

18-9526tsacFormerUnitedStatesAttorneys

Amicus Briefs in Support of Respondent:

2020 03 20 Amicus Brief of United States

2020 03 20 Environmenal Fderation of Oklahoma, et al, Amicus Brief

2020 03 20 Int’l Municipal Lawers and Nat’l Sheriffs’ Assn Amicus Br

2020 03 20 States’ Amicus Br

2020 03 20 Tulsa Merits Amicus Brief

Oklahoma District Attorneys Amicus Brief

Cert Stage Materials:

mcgirt-cert-petition.pdf

appendix.pdf

oklahoma-brief-in-opposition.pdf