Supreme Court
Malaterre Cert Stage Reply Brief
Yale Law Journal Comment on the OSG’s Certiorari Decisionmaking
Here.
Cert Petition in In re Beaulieu: Chance for SCT to Clarify PL280 Confusion in Minnesota and Wisconsin
Here:
Here are the questions presented:
1. Does Public Law 280 (18 U.S.C. § 1162 and 28 U.S.C. (1360) give the State of Wisconsin jurisdiction to involuntarily civilly commit a member of a federally recognized Indian tribe who is a legal resident of his tribal reservation under Minnesota’s Commitment and Treatment Act (Minn. Stat. Ch. 253B?)
2. Was Minnesota’s involuntary civil commitment of Beaulieu contrary to, and/or an unreasonable application of this Court’s clearly established law limiting Public Law 280’s grant of civil jurisdiction to private civil matters?
Lower court decision here.
United States Files Cert Petition in Sebelius v. Southern Ute: Another Contract Support Costs Petition
Here:
Sebelius v Southern Ute Petition
The government asks that this petition be held pending the outcome of the other petitions (Ramah Navajo Chapter and Arctic Slope).
Slate on Justice Sotomayor’s “Lonely” Dissent in Jicarilla Apache Nation
Here.
An excerpt:
Sotomayor focused her dissent on the uncomfortable public policy implication of the majority opinion, namely, that the government could have legitimate reasons for managing the trust beyond, or perhaps even contrary to, the interests of the tribe without the obligation to turn over the evidence that proves it. But the majority didn’t flinch. “Congress has structured the trust relationship to reflect its considered judgment about how the Indians ought to be government,” Alito affirmed, “[I]t has been altered and administered as an instrument of federal policy.”
Forget ducks. For Sotomayor, this doesn’t even pass the smell test. The government acts as a trustee and calls itself a trustee, but it won’t abide by any of the traditional duties that go with being a trustee unless it affirmatively accepts them. In effect, the government is using the word trust without feeling obliged by its definition. “There’s no need to use the word,” Sotomayor tartly noted in oral arguments, “because it wouldn’t be a trust.”
The problem for Sotomayor is that the government can be a trustee, but it can’t only be a trustee, and the dual nature of its relationship undermines the trust law exception to attorney-client privilege. Her response is to say that the interests of the trustee and beneficiary should always be aligned; that justice cannot tolerate the casual discharge of a sacred trust, particularly one owed by the federal government to a vulnerable group of people. “Given the history of governmental mismanagement of Indian trust funds,” she says in her dissent, the “application of the fiduciary exception is, if anything, even more important in this context than in the private trustee context.” Maybe so, but that is a moral reply to a legal conundrum. As a matter of law, Sotomayor would have been better off joining Ginsburg’s concurrence, which tried to provide a single exception to the traditional trust relationship. That she did not says a lot about the jurisprudential prerogatives of one of the newest members of the Court.
Jurisprudential prerogatives, and the moral imperatives that underpin them, are the stuff of lonely dissents, which tend to be less about the law than its shortcomings. They are written accounts of a judge’s reckoning with the oldest dilemma of her profession: that what is legal is not necessarily just, and what is just is not necessarily legal. As Sotomayor attests, they can be telling in their despair.
Update in Salazar v. Ramah Navajo Chapter Cert Stage
Here are additional cert stage briefs:
The cert petition is here.
Amerind Cert Opposition Brief
Cavanaugh and Shavanaux Cert Petitions: Challenges to Use of Uncounseled Tribal Court Convictions in Federal Sentencing
Here they are:
11-7379 Cavanaugh Cert Petition
11-7731 Shavanaux Cert Petition
The Cavanaugh question presented (Cavanaugh is now represented by Alex Reichart of United States v. Lara fame):
Whether the United States Constitution precludes the use of prior, uncounseled, tribal court misdemeanor convictions as predicate convictions to establish the habitual offender element of Section 117?
The Shavanaux question presented:
Does the Constitution prevent the use of a prior, uncounseled tribal court conviction that received a term of imprisonment to establish an element of the offense?
Here are the Cavanaugh lower court materials. And here are the Shavanaux lower court materials.
There is no circuit split, as far as we can tell. As such, it seems pretty unlikely these petitions will be granted. As we’ve said here, the Ninth Circuit does not appear to have weighed in on the question. Both petitions argue that the CA9 decision in United States v. Ant (882_F.2d_1389) furnishes the desired circuit split. It’s not clean, in that Ant’s tribal court conviction was a guilty plea used as a confession in federal court, not a conviction in a prior case used under Section 117 to establish facts for a habitual offender sentence enhancement. That said, who knows? We’ll see how the government handles it.
H/t Indianz.
Ute Mountain Ute Tribe Cert Petition in Natural Resources Tax Case
Here are the materials:
Final UMUT Petition for Certiorari
The questions presented are:
1. Does a state have the power to tax minerals production within the territorial boundaries of an Indian nation when the state provides no services in that location whatsoever, and where the tribe’s members cannot even vote in that state’s elections, amounting to taxation without representation?
2. Does Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989), permit New Mexico to tax oil and gas operators’ activities on Indian trust land even where, as here, “the State has nothing to do with the on-reservation activity,
save tax it”?
Tenth Circuit materials are here.
Turtle Talk 
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