Here.
WaPo Coverage of Asian Carp Cert Petition
Here.
Supreme Court
Michigan v. United States Army Corps of Engineers Cert Petition (Asian Carp)
Here:
Asian Carp Cert Pet_10 26 2011
Questions presented:
This multi-sovereign dispute involves the imminent invasion of Asian carp into the Great Lakes ecosystem. Although the Seventh Circuit Court of Appeals concluded that catastrophic harm has a “good” or “perhaps even a substantial” likelihood of occurring, Pet. App. 4a–5a, it affirmed the district court’s denial of even the plaintiffs’ most modest requests for injunctive relief. The Seventh Circuit’s opinion raises two questions for this Court’s review:
1. Whether a request for multiple types of preliminary-injunctive relief requires a balancing of harms with respect to each form of relief requested.
2. Whether a party’s statement that it is “considering” implementing the relief requested in a motion for injunction is a ground for denying the injunction.
Seventh Circuit decision here.
SCOTUSblog Lists Gila River Indian Community v. Lyon as Petition to Watch
Here:
Gila River Indian Community v. Lyon
Pending petition
Docket No. Op. Below Argument Opinion Vote Author Term 11-80 9th Cir. TBD TBD TBD TBD TBD Issue: (1) Whether, under Federal Rule of Civil Procedure 19(b), courts may adjudicate and compromise legal rights in land to which the United States holds title without the United States’ participation in the litigation; and (2) whether, in light of this Court’s recent decision in United States v. Jicarilla Apache Nation, No. 10-382 (June 13, 2011), litigation compromising the United States’ title in land can proceed in the United States’ absence as long as an Indian tribe is a party to the litigation.
Briefs and Documents
Certiorari-stage documents
Omaha Tribe v. StoreVisions Cert Petition
Filed yesterday, I’m told:
Question presented:
Is apparent authority sufficient to bind an Indian tribe to a waiver of the tribe’s federally protected sovereign immunity, when the purported waiver is executed by a tribal official acting outside the scope of his actual authority?
Lower court materials are here.
Kansas SG McAllister on Indian Tribes and Foreign Governments as Amici before the SCT
Stephen R. McAllister, the Solicitor General of Kansas, has published “The Supreme Court’s Treatment of Sovereigns as Amici Curiae” in the Green Bag 2d. He posted the article on SSRN here.
Here is the abstract:
This article traces the history of current Supreme Court Rule 37.4, which exempts the federal government, state governments, and local governments from rules that otherwise require consent of the parties to file an amicus brief and that require disclosure of information regarding whether any person or entity other than the named amicus contributed financially or otherwise to the amicus brief. The article surveys the Supreme Court’s historical practices regarding amici filings by government entities, and locates the first rule of the Court addressing amicus filings, then traces the rule’s evolution forward to the current day. In particular, the article considers the treatment of both Indian Tribes and foreign nations as sovereign amici in the Supreme Court, and comments upon their exclusion from current Rule 37.4.
LaBuff v. United States Cert Petition
Here:
LaBuff Petition for Certiorari dated August 26, 2011
Lower court materials here.
Here are the questions presented:
1. Has the Ninth Circuit, contrary to United States v. Rogers, erroneously minimized consideration of the undisputed facts that petitioner is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian and thereby created a conflict with the Eighth Circuit?
2. Did the government prove beyond a reasonable doubt that petitioner is an Indian person where he is not a member of a tribe, is not socially recognized as an Indian, does not participate in Indian social life, and does not hold himself out as an Indian?
Ninth Circuit Decides Indian Status Case Under Major Crimes Act
I’m still trying to understand how a reasonable jury of non-Indians can decided beyond a reasonable doubt that someone is an “Indian” under the Major Crimes Act. 🙂
Here are the materials in United States v. LaBuff:
The court originally decided this case without publishing the opinion, but the government successfully petitioned the court to published it. Here are those materials. A cert petition is pending (docket no. 11-6168, definitely one to watch!):
Update with additional Ninth Circuit materials:
Doc 27 Objection filed October 18, 2011
Navajo Tribal Court Suit against Gallup Diocese: Interesting, Even Strange Supreme Court Implications
As we noted a few weeks ago, the Navajo Nation Supreme Court remanded a suit against the Gallup Diocese. The suit apparently alleges sexual abuse against Catholic priests and others against the plaintiff, a John Doe. The case does not have national importance yet, but it one day could.
Consider a class action suit brought in tribal court against any number of Catholic dioceses around the nation. We could have them here in Michigan in relation to the Holy Childhood school abuses, which are extensive and extensively documented.
Most outsiders would say why not sue in state or federal court, but a significant portion of the claimed abuses would have happened within reservation boundaries, making tribal court jurisdiction an issue. If the torts alleged occurred on church property, then the Montana case becomes the “pathmarking” doctrine. Since the church probably never consented to tribal jurisdiction, what remains is Montana 2 — the so-called health, welfare, political integrity, and economic security exception to the general rule that tribes cannot assert jurisdiction over nonmembers.
A class action successfully proving intergenerational trauma and multiple wrongful deaths could arguably meet the Montana 2 criteria, even in a federal circuit court.
So that raises the specter of Supreme Court review. Seven of the nine Justices, at least right now, are Catholic. Will they have to recuse themselves? Actually, they aren’t required to at all, but will they? I would guess no. It’s one thing to persuade the Court to affirm tribal jurisdiction, but another to persuade the Court to affirm jurisdiction over a Catholic diocese.
I always thought the commentary about the fact that there are so many Catholics on the Court was kind of silly, until I started thinking about this case.
Interesting, and strange.
Reuters Article on Oneida Land Claims Cases
Here:
ALBANY, N.Y., Oct. 18 (Reuters) – In a decision that could have implications for Native American tribes nationwide, the U.S. Supreme Court on Monday declined to hear an appeal by the Oneida Indian Nation seeking compensation for 250,000 acres of former tribal lands illegally purchased by New York in the 18th and 19th centuries.
The suit, first filed in 1974, alleged New York violated federal law when it purchased the land without Congressional approval. The suit claims the land, bought in central New York between 1795 and 1846, is now worth more than $500 million.
The U.S. Court of Appeals for the Second Circuit tossed out the case last August, ruling that while the purchase of the land was illegal, granting the nation’s claims would be too disruptive to the state, local governments and the current owners of the land in question.
NYTs: “College Diversity Nears Its Last Stand”
Here.
Turtle Talk 
You must be logged in to post a comment.