Here.
NYTs: “College Diversity Nears Its Last Stand”
Here.
Supreme Court
Malaterre v. Amerind Risk Management is SCOTUSBlog Petition of the Day
Here:
The petition of the day is:
Malaterre v. Amerind Risk Management Corp.
Docket: 11-441Issue(s): Whether a tribal business corporation formed pursuant to 25 U.S.C. § 477 with the aim of insuring Indian Housing Authorities may properly invoke tribal sovereign immunity as a ground for avoiding its contractual obligation to provide insurance coverage for liability claims arising from injuries sustained by tribal-member tenants in Indian housing units.
Certiorari stage documents:
Opinion below (8th Cir.)
Petition for certiorari
Commentary on Supreme Court’s Denial of Oneida Land Claims Petitions
Two things immediately spring to mind on the denial of the Oneida land claims petitions.
The first is that the federal government’s persuasive oomph (with the OSG as the so-called “Tenth Justice”) loses a ton of force when siding with tribal interests. No big surprise to me there. But it must be a little strange for the Justices to see the United States so vehemently demanding to be let off the hook for their breaches of trust toward Indian tribes in Tohono O’odham and Jicarilla and almost in the same breath ask for the Court to review Indian land claims dismissals. The government’s filings before the Court in Indian affairs are two-sided, even a little schizophrenic.
Second, Justice Ginsburg seems to be stepping in Justice Stevens’ role as the the most senior Justice with an interest in limiting the damage to tribal interests in the Supreme Court. And like Justice Stevens, she wrote some negative opinions against tribal interests. But her earlier opinions appear to have swaths of broad dicta that lower courts and the Supreme Court are now leaping at in order to reject more recent tribal claims. I’m thinking of her opinion in Strate, which technically applied only to non-Indian lands on reservation, which Justice Scalia attempted to expand to Indian lands in Hicks; and also now her opinion in Sherrill, which was ostensibly about taxation immunities but now applies broadly (at least in the Second Circuit) to all tribal land claims. Both times she appears to be trying to reel in the Court in applying her dicta in earlier cases, and both times unsuccessfully.
Also, Justice Sotomayor backs up her statement about Indian law being a focus for her.
Supreme Court Denies Cert in Oneida Land Claims Petitions — Ginsburg and Sotomayor Would Grant Petitions
The Court also denied cert in Seneca Telephone v. Miami Tribe.
Gila River Cert Stage Reply Brief
Supreme Court Fails to Act on Oneida Land Claims Petitions
Well, the rule of thumb seems to be that if the petition isn’t granted in the first relisting, then the chances of a grant go way down. Our guess is that a Justice or two is writing a dissent to the denial of certiorari. At this point, that seems like the best conceivable outcome. Of course, Court could be considering a summary reversal, but that’s extremely rare.
Lomas v. Hedgpeth Cert Petition: Challenge to Conviction Based on Search at Morongo Gaming Operation
Here is the petition:
The question presented:
Whether the Ninth Circuit incorrectly denied Petitioner a Certificate of Appealability, pursuant to 28 U.S.C. § 2253(c), on his Sixth Amendment claim that his trial counsel rendered ineffective assistance of counsel by failing to file a Motion to Dismiss and/or Suppress pursuant to his Fourth Amendment right to be free from an unreasonable search and seizure on the Morongo Band of Mission Indians’ Reservation’s protected land?
No chance for a grant here.
Malaterre v. Amerind Risk Management Cert Petition — Section 17 Corporation Immunity
Here is the petition:
And the questions presented:
Whether a tribal business corporation formed pursuant to 25 U.S.C. § 477 with the aim of insuring Indian Housing Authorities may properly invoke tribal sovereign immunity as a ground for avoiding its contractual obligation to provide insurance coverage for liability claims arising from injuries sustained by tribal-member tenants in Indian housing units.
Lower court materials here.
And for good measure, the Federal Reporter 3d version of the lower court opinion:
Oneida Land Claims Petitions Listed on SCOTUSBlog’s Relist List
Here:
United States v. New York (relisted after the 9/26 Conference)
Docket: 10-1404
Issue(s): Whether the United States may be barred from enforcing the Nonintercourse Act against a state that repeatedly purchased and resold (at a substantial profit) Indian lands in violation of the Act between 1795 and 1846, based on the passage of time and the transfer of the unlawfully obtained Indian lands into the hands of third parties, when the United States seeks monetary relief only against the state.
Certiorari stage documents:
- Opinion below (Second Circuit)
- Petition for certiorari
- Brief in opposition
- Petitioner’s reply
- Amicus brief of National Congress of American Indians
- Amicus brief of law professors
Oneida Nation of New York v. County of Oneida, New York (relisted after the 9/26 Conference)
Docket: 10-1420
Issue(s): (1) Whether the court of appeals contravened this Court’s decisions inOneida Indian Nation of New York v. County of Oneida and City of Sherrill v. Oneida Indian Nation by ruling that “equitable considerations” rendered petitioners’ claims for money damages for the dispossession of their tribal lands in violation of federal law void ab initio; and (2) whether the court of appeals impermissibly encroached on the legislative power of Congress by relying on “equitable considerations” to bar petitioners’ claims as untimely, even though they were brought within the statute of limitations fixed by Congress for the precise tribal land claims at issue.
Certiorari stage documents:
Justice Stevens Critical of Seminole Tribe v. Florida & Sovereign Immunity
In his new book, according to the National Law Journal’s Marcia Coyle, Justice Stevens levels strong criticism at the Supreme Court’s decision in Seminole Tribe v. Florida:
The tenor of the Court’s deliberations changed immediately when William Rehnquist became chief justice, according to Stevens. Rehnquist, he writes, was an impartial presiding officer and meticulous in noting the justices’ different positions on issues in each argued case. But Stevens levels some of the book’s sharpest criticism on Rehnquist’s decisions involving state sovereign immunity. Stevens considers the first in a line of 11th Amendment rulings — Seminole Tribe of Florida v. Florida — one of the Court’s worst rulings in his nearly 35 years. In an interview withThe National Law Journal, he explained that sovereign immunity is a “doctrine of injustice.”
And he calls the retirement of Thurgood Marshall, the “most significant judicial event” of Rehnquist’s tenure as chief, not only because of Marshall’s contributions to the Court’s conference but because of the changes in the Court’s jurisprudence attributable to the votes of his successor, Clarence Thomas.
Turtle Talk 
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