Here:
Mn AG Brief Oppsng Kev B Pet4 Cert 3-14-12
You may recall the state waived its right to respond to the cert petition, but the SCT called for a response.
Supreme Court
Supreme Court Denies Cert in Shavanaux
As expected, given the denial in Cavanaugh. Here is today’s order (Shavanaux is on page 4).
Here is our post on this question — how (and whether) federal courts may use uncounseled tribal court convictions for sentencing purposes. The cert petitions are here. OSG doesn’t publish cert opps for unpaid petitions, so if anyone has them, please send along.
New Scholarship on an Administrative Carcieri Fix
Howard Highland has posted his article, “A Regulatory Quick-Fix for Carcieri V. Salazar: How the Department of Interior Can Invoke an Alternative Source of Existing Statutory Authority to Overcome an Adverse Judgment Under the Chevron Doctrine,” on SSRN. The Administrative Law Review published the article in its 2011 volume.
Here is the abstract:
Secretary of the Interior Ken Salazar has requested that Congress enact a “legislative fix” for the Supreme Court opinion in Carcieri v. Salazar. In Carcieri, the Court interpreted the Indian Reorganization Act of 1934 (IRA) to effectuate a perverse distinction between Indian tribes under federal jurisdiction in June 1934 and Indian tribes whose relationship with the federal government was not established until after June 1934. Applying step one of the doctrine articulated in Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., the majority opinion of Justice Thomas declared that “the term ‘now under Federal jurisdiction’ in [the IRA] unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934.” As a result, a cloud now hangs over any land-into-trust transactions that the Secretary has made for Indian tribes which were not federally recognized until after 1934, and which are now unable to prove that their “post-1934 recognition [was granted] on grounds that implied a 1934 relationship between the tribe and Federal Government that could be described as jurisdictional.”
Whereas other proposals for a Carcieri fix presume the need for new legislation or regulations to fix Carcieri, this Recent Development argues that existing statutes and regulations already authorize the Secretary to overcome the effects of Carcieri. Even though the IRA no longer authorizes the Secretary to take land into trust for Indian tribes not under federal jurisdiction in June 1934, the Secretary’s fee-into-trust regulations under 25 C.F.R. Part 151 rest on several other pillars of statutory authority. 25 U.S.C. §§ 2 and 9 are the strongest alternative sources of statutory authority under which the Secretary may claim delegated authority for fee-into-trust acquisitions on behalf of Indian tribes not under federal jurisdiction in June 1934. Under the Chevron doctrine, 25 U.S.C. §§ 2 and 9 constitute an explicit delegation of authority to the Secretary to promulgate “legislative regulations [which] are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Such legislative regulations are thus entitled to the maximum amount of Chevron deference.
25 U.S.C. §§ 2 and 9 also form the statutory basis for 25 C.F.R. § 83.12(a), which entitles acknowledged tribes to “the privileges and immunities available to other federally recognized historic tribes,” and renders them “eligible for the services and benefits from the Federal government that are available to other federally recognized tribes.” Hence, federal acknowledgment under 25 C.F.R. Part 83 ought to include the benefits available to tribes under 25 C.F.R. Part 151. This Recent Development urges that the ruling in Carcieri does not prohibit the Secretary from asserting that he has always held statutory authority under 25 U.S.C. §§ 2 and 9 to transfer land into trust for Indian tribes acknowledged under 25 C.F.R. Part 83. Although not every tribe federally recognized after 1934 was given status under 25 C.F.R. Part 83, the regulatory quick fix proposed in this paper would minimize the devastating consequences of Carcieri while a legislative fix stalls in Congress.
Tribal Supreme Court Project Ten Year Report — And Quick Commentary
Here:
TSCT 10 Year Report – FINAL March 2012
This is an important report for tribal leaders and advocates to read. From the introduction:
Now in existence for ten years, the Tribal Supreme Court Project can look back to review the degree to which its work has been effective. From OT01 through OT10, several developments are notable. First and foremost is the win-loss record for Indian tribes before the Court. Figure 1 of the Report is a table of the Indian Law Cases Where Certiorari Was Granted. Overall, the win-loss percentage has remained the same with the Tribes winning only about 25% of their cases. However, under the Rehnquist Court (OT01-OT04), Indian tribes increased their winning percentage to greater than 50%—winning 4, losing 3, and 2 draws in 9 Indian law cases heard on the merits. This winning percentage was a vast improvement from a deplorable winning percentage of 20% in the past. The work of the Tribal Supreme Court Project appeared to be paying major dividends. But in the past six terms of the Roberts Court (OT05-OT10), Indian tribes have witnessed their winning percentage plummet to 0%—losing all 7 cases argued on the merits.
A few comments:
- The Supreme Court outcomes aren’t the whole story. The TSCP has been very successful in two areas — organizing amicus brief strategy and getting cert denied in several cases — although the Project is just one player in the process (the OSG, the tribal parties, and others are often as or more important). Last Term’s dismissal of the Madison County petition was a major success.
- Bringing in members of the Supreme Court “Bar” has been critical in limiting the damage to tribal interests. David Fredericks’ work, for example, in Plains Commerce Bank may have changed that case from a potential disaster for tribal jurisdiction purposes to a 5-4 heartbreaker (or, a case that really didn’t decide anything). Names matter to the Supreme Court (well, as does quality of advocacy, too, to be sure). Of course, there’s an arms race and tribal interests are now facing the Ted Olsons and Paul Clements of the world, so in some ways its a wash. In fact, this may be a reason why there have been no additions to the First Thirteen American Indians to argue before the Supreme Court since 2001.
- The requirements for success in the Supreme Court for tribal interests remain (as they probably always have): (1) the federal government’s participation as a party or an amicus in support of tribal interests and (2) treaty or statutory interpretation cases. The Rehnquist/Roberts Courts are clearly not common law courts, unlike the Warren/Burger Courts, and that heavily disfavors federal Indian common law claims. And more and more, as the federal government’s conflicts within the trust responsibility become almost too large to handle, the effectiveness of the federal government’s support in Supreme Court advocacy as an amicus is waning considerably.
- Our late, departed friend David Getches was the great scholar on Supreme Court jurisprudence, but he also said (as did Rennard Strickland) that the future of Indian law is in tribal law and in tribal bureaucratic and administrative advocacy. In many ways, Supreme Court litigation is the reality TV of American Indian law, surreal and wholly unrepresentative of what tribes are doing now.
AILC: The First 13 Symposium THIS FRIDAY
Cert Opposition Brief in Nielson v. Ketchum
McCrary v. Ivanof Bay Village: Cert Petition Challening Alaska Native Immunity
Here is the petition:
Question presented:
Whether the Alaska Supreme Court correctly held that Congress intended the Federally Recognized Indian Tribe List Act to delegate the Secretary of the Interior authority to create more than 200 “federally recognized tribes” in Alaska by publishing a list of Native Entities in the Federal Register.
The Impact of Corporate Amicus Briefs in the Supreme Court
Here.
Fair Housing Act Advocates Settle Case to Avoid Roberts Court Review
Here is the article.
As one commentator noted to us, the author must not have heard of Madison County v. Oneida Indian Nation, last Term.
WaPo: Roberts Court Lacking in “Practical Wisdom”
From How Appealing:
“How is the Roberts Court unusual? A law professor counts the ways.” Robert Barnes will have this article Monday in The Washington Post. A related graphic can be accessed here.
Thanks also to E.E.
Turtle Talk 
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