Here:
Miami Tribe Cert Opposition Brief
Here:
Supreme Court
Corboy v. Louie Cert Petition re: Hawaiian Natives
Here:
Here is the question presented:
Whether the Hawaii courts erred in failing to recognize that petitioners have standing to seek a refund of their own taxes and that the Equal Protection Clause precludes a State or municipality from creating tax exemptions that are available only to members of a certain race.
The lower court materials are here.
Final Cert Stage Brief (I Think) in Peabody Western/Navajo Nation/EEOC Cert Petitions
Here:
LABOR DAY NEWS OF THE DAY: SCOTUSblog Lists EEOC v. Peabody/Navajo as Petition to Watch
This must be because the federal government is the petitioner, but this is merely a conditional petition. The government opposes Peabody’s and Navajo’s petitions, and those aren’t “petitions to watch.”
Here:
Title: Equal Employment Opportunity Commission v. Peabody Western Coal Company
Docket: 10-1080
Issue(s): Whether the Secretary of the Interior is a “required party,” within the meaning of Rule 19(a)(1) of the Federal Rules of Civil Procedure, to an action by the Equal Employment Opportunity Commission against a private employer, where the challenged conduct was undertaken pursuant to a federally approved mining lease between the employer and an Indian Tribe, but no federal agency is a party to the lease.Certiorari stage documents:
ICT Article on Gun Lake/United States Cert Petitions in Patchak Case
Here. An excerpt:
So, the potentially huge question for Indian country revolves around the Quiet Title Act, Fletcher said. “If the immunity barrier in the QTA can be gotten around, then much trust land recently taken into trust could be challenged by virtually anyone who is strongly opposed to trust land acquisitions. What’s remarkable about this case is the standing holding. Basically, all Patchak can prove is that he very strongly opposes Indian gaming. He’s not actually injured by it at all, other than worries about the ‘rural character’ of his community, whatever that means. Wayland and its surrounding townships long have hoped for more industry and economic growth – I know, I grew up there. So it’s just one guy for all we know who doesn’t want that. He’s pretty firmly in a tiny minority,” Fletcher said.
Gun Lake presents a number of arguments in seeking the high court’s review. Because the appeals court decision is on conflict with four other appeals court decisions in similar cases it has “opened a substantial gap” in the federal government’s sovereign immunity under the QTA from litigation challenging its title to trust or restricted Indian lands, as well as federal lands generally, the lawsuit says. If the appeals court ruling is left in place, that means anyone with a gripe could create a challenge in any case in which the federal government “claims an interest” whether it is Indian lands, national parks, public lands, easements or any other lands covered by the QTA’s terms and exceptions.
Also, because the D.C. Circuit hears almost all lawsuits against the federal government, prospective plaintiffs will now be able to “forum shop” their way around the United States’ sovereign immunity in disputes challenging the federal government’s title to land or “avoid the QTA and controlling circuit law altogether by simply filing their lawsuits in the District of Columbia,” the Gun Lake petition says.
The federal government’s petition asks the high court to consider “(w)hether (the Administrative Procedures Act) waives the sovereign immunity of the United States from a suit challenging its title to lands that it holds in trust for an Indian Tribe,” and more directly seeks the high court’s review of the Carcieri ruling in asking “(w)hether a private individual who alleges injuries resulting from the operation of a gaming facility on Indian trust land has prudential standing to challenge the decision of the Secretary of the Interior to take title to that land in trust, on the ground that the decision was not authorized by the Indian Reorganization Act.”
Among the arguments presented by the federal government in seeking the high court’s review is that the Administrative Procedure Act under which Patchak filed his lawsuit against the Interior Department does not allow an end run around the Quiet Title Act’s provision that precludes any person from seeking to divest the United States of title to Indian trust lands.
On Justice Ginsburg’s Admission She Doesn’t Read “Most” Amicus Briefs
Justice Ginsburg admitted earlier this week at a talk at SMU that she doesn’t read most amicus briefs. [A link to an article about her talk is here.] Here is an excerpt of the article reporting on the discussion:
To prepare for oral arguments in all cases, Ginsburg said she reads all the prior opinions and part of the record before opening the lawyers’ briefs. She follows that order so she may spot inaccuracies in the briefs. “Lawyers should know, if they try to distort the record, they will be found out,” she said. Writers of amicus briefs face other concerns: “I have to confess, I don’t read all of those. In fact, I don’t read most of them,” Ginsburg said.
The possibility that Supreme Court Justices don’t read amicus briefs, or only read a few of them, is not new. In fact, the Tribal Supreme Court Project’s greatest successes so far have been in limiting the number of redundant amicus briefs filed in the Court, and negotiating strategies for targeted, careful amicus briefs.
What is new, a little bit, is the admission from one of the Justices. Our question is this: Will there be an impact on the market for amicus briefs? Right now, just about every Supreme Court practitioner shop in D.C. has clients willing to shell out dough for amicus briefs. Will that market start to dry up, even just a little bit?
Regardless, this information is sobering.
Amicus Briefs in the Supreme Court’s Indian Cases (Roberts Court Era)
Frank Pommersheim’s wonderful paper on the amicus brief strategies in Plains Commerce Bank in the South Dakota Law Review (email me if you want a copy) is a starting off point for this (yet another) quick study of Supreme Court adjudication, as is the recent short paper on the rise of the citation to amicus briefs in the Roberts Court (via How Appealing).
In short, the Court pays attention to amicus briefs siding with the tribes, discussing them at length, and rejecting the pro-tribal interest arguments uniformly.
Let’s begin with the case name that cites to an amicus brief, and then perhaps a quote from the opinion:
United States v. Jicarilla Apache Nation:
We cannot agree with the Tribe and its amici that “[t]he government and its officials who obtained the advice have no stake in [the] substance of the advice, beyond their trustee role,” Brief for Respondent 9, or that “the United States’ interests in trust administration were identical to the interests of the tribal trust fund beneficiaries,” Brief for National Congress of American Indians et al. as Amici Curiae 5.
Carcieri v. Salazar:
From the majority opinion:
The Secretary and his amici also go beyond the statutory text to argue that Congress had no policy justification for limiting the Secretary’s trust authority to those tribes under federal jurisdiction in 1934, because the IRA was intended to strengthen Indian communities as a whole, regardless of their status in 1934. Petitioners counter that the main purpose of § 465 was to reverse the loss of lands that Indians sustained under the General Allotment Act, see Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650, n. 1, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001), so the statute was limited to tribes under federal jurisdiction at that time because they were the tribes who lost their lands. We need not consider these competing policy views, because Congress’ use of the word “now” in § 479 speaks for itself and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”
And yet again: Continue reading
Justice Thomas’ Indian Law Vision
Much is being made of Justice Thomas as a rising leader in the Roberts Court, which quietly says a great deal about the incredible conservatism of the Court right now. Justice Thomas views on gun control, which former Chief Justice Burger would have labeled “fraudulent,” are now the law. Jefffrey Toobin’s New Yorker piece, profiled at SBM blog, notes that Thomas’s dissenting and concurring opinions long have espoused well-nigh radical notions of constitutional law, and are now being vindicated one after the other.
Justice Thomas’s radical vision of the law also has touched Indian law. In particular, Thomas has suggested two major changes to Indian law jurisprudence.
First, in White Mountain Apache, he wrote that the trust relationship was more properly viewed as a “guardian-ward relationship,” a view adopted to some extent by the Jicarilla Court just a few months ago:
The Court of Claims has observed that the relationship between the United States and Indians is not governed by ordinary trust principles: “The general relationship between the United States and the Indian tribes is not comparable to a private trust relationship. When the source of substantive law intended and recognized only the general, or bare, trust relationship, fiduciary obligations applicable to private trustees are not imposed on the United States. Rather, the general relationship between Indian tribes and [the United States] traditionally has been understood to be in the nature of a guardian-ward relationship. A guardianship is not a trust. The duties of a trustee are more intensive than the duties of some other fiduciaries.” Cherokee Nation of Oklahoma v. United States, 21 Cl.Ct. 565, 573 (1990) (citations and internal quotation marks omitted).
One can only wonder what Justice Thomas would have done if Cobell had fallen into the Court’s lap. Today’s posting on the lower court’s sarcastic rejection of the government’s position on the merits of the Jicarilla trust claim suggests the DOJ and DOI are more than willing to offer up an argument to return the trust relationship to the Lone Wolf v. Hitchcock era.
Second, Justice Thomas has stated an interest in extending his onslaught on the commerce clause to the Indian Commerce Clause context. In United States v. Lara, he linked Lopez and Morrison to the Indian Commerce Clause: Continue reading
Navajo Nation and Peabody Coal Opposition Briefs to EEOC Conditional Cross-Petition
Here:
Navajo Opposition to EEOC Conditional Cert Petition
Peabody Coal Opposition to EEOC Conditional Cert Petition
The EEOC’s conditional petition is here.
The original cert petitions from Navajo and Peabody are here.
Cert Petition in Salazar v. Patchak
Here:
Questions presented:
1. Whether 5 U.S.C. § 702 waives the sovereign immunity of the United States from a suit challenging its title to lands that it holds in trust for an Indian tribe.
2. Whether a private individual who alleges injuries resulting from the operation of a gaming facility on Indian trust land has prudential standing to challenge the decision of the Secretary of the Interior to take title to that land in trust, on the ground that the decision was not authorized by the Indian Reorganization Act, ch. 576, 48 Stat. 984.
Gun Lake’s petition is here, along with a link to lower court materials.
Turtle Talk 
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