Supreme Court

Gun Lake Band Cert Petition in Patchak

Matthew L.M. Fletcher2 Comments

Here:

2011.08.24 – Gun Lake Cert Petition.

I. Whether the Quiet Title Act and its reservation of the United States’ sovereign immunity in suits involving “trust or restricted Indian lands” apply to all suits concerning land in which the United States “claims an interest,” 28 U.S.C. § 2409a(a), as the Seventh, Ninth, Tenth, and Eleventh Circuits have held, or whether they apply only when the
plaintiff claims title to the land, as the D.C. Circuit held.

II. Whether prudential standing to sue under federal law can be based on either (i) the plaintiff’s ability to “police” an agency’s compliance with the law, as held by the D.C. Circuit but rejected by the Fifth, Sixth, Seventh, and Eighth Circuits, or (ii) interests protected by a different federal statute than the one on which suit is based, as held by the D.C. Circuit but rejected by the Federal Circuit.

Lower court materials here.

EEOC Requests Vacature and Remand of Ninth Circuit’s Decision in Navajo Nation/Peabody Coal Cert Petitions

Matthew L.M. Fletcher

Here is the federal brief:

Brief for Federal Respondent.

Cert petitions are here. CA9 opinion post is here.

BMG v. Chukchansi Gold Resort and Casino Dismissed under Rule 46

Matthew L.M. Fletcher2 Comments

Here is the Supreme Court docket noting the dismissal yesterday.

Evans v Wapato Heritage LLC Cert Petition

Matthew L.M. Fletcher1 Comment

Here:

Evans Cert Petition

Questions presented:

I. Should this Court grant this petition to address the court of appeals’ and district court’s lack of subject matter jurisdiction over this matter?
II. Should this Court grant this petition to address the court of appeals’ and district court’s erroneous interpretation of 25 U.S.C. § 410 as not applying to the assignment and attachment of Evans’s Individual Indian Money Account?
III. Should this Court grant this petition to address the court of appeals’ and district court’s erroneous grant of summary judgment when there are genuine issues of material fact?
IV. Should this Court grant this petition to address the court of appeals’ and district court’s erroneous exclusion of Evan’s expert evidence on damages?

Indian Land Working Group Amicus Brief in Support of Petition in Gila River Indian Community v. Lyon

Matthew L.M. Fletcher1 Comment

Here:

Indian Land Working Group Amicus in Support of Cert Petition

The cert petition is here.

On Justice Alito’s Visit to Pine Ridge

Matthew L.M. Fletcher

Of course, too much will be read into this. The last time this happened, when Justices Breyer and O’Connor visiting the Spokane and Navajo tribal courts at the behest of NAICJA, it was part of a program that culminated in a symposium at the National Judicial College. Justice Alito’s visit did not seem to have the same educational focus, but is a very good thing anyway. The more the Supreme Court Justices know, the better.

Thanks to Peter Vicaire’s Supreme Court “report card,” we know that Justice O’Connor sat in on eight Indian law cases after her visit. She voted in favor of tribal interests in five of those cases (Chickasaw, Navajo, White Mountain Apache, Lara, and Cherokee Nation v. Leavitt), and against three times (Inyo County, Sherrill, and Wagnon). As a swing Justice, her vote was significant — tribal interests won three of the five cases in which SOC voted in their favor, and lost all three in which she didn’t. Prior to the July 2001 visit, she voted in favor of tribal interests in 9 out of 39 cases (23 percent).

Justice Breyer has voted in favor of tribal interests in only 4 of 13 cases since July 2001 (31 percent), a markedly worse record than SOC’s post-visit record. His positive votes were in White Mountain, Lara, Cherokee Nation, and Plains Commerce Bank (tribal interests won three of those). His negative votes were in Chickasaw, Navajo, Sherrill, Wagnon, Carcieri, Hawaii, Navajo II, Tohono O’odham, and Jicarilla (tribal interests lost all of these cases; none of them were even close). His pre-visit record was about the same, maybe a little better — 5 out of 19 (26 percent). His most interesting vote was in Plains Commerce, where he added a fourth vote in a tribal court jurisdiction case. Maybe his improved knowledge about tribal courts played a role? His opinion in Carcieri was a nice touch as well, an effort to limit the import of the outcome.

All in all, the track record of any Justice isn’t going to change a whole lot unless the kinds of cases changes. We keep seeing the same kinds of claims — demands for immunity from state taxation, suits for money damages against the United States, and the like. Yes, the facts of the cases are incredibly compelling, and demand real justice (at least the claims against bad actor governments), but they’re losers more often than not in Supreme Court no matter who you are (the lower courts is another matter). The only winning cases are treaty rights and statutory interpretation cases, and even those are just toss-ups (but even toss-ups sound good, don’t they?).

In the future, tribes asserting a kind of progressive, creative, and necessary kind of sovereignty are going to win in the Supreme Court. Visits by Justices to Indian country to learn about tribal law enforcement will give them something useful to think about when presented with claims about how it is almost impossible for the feds to prosecute non-Indian violent crime. Visits to learn about Indian schools (like Red Cloud) and tribal governance overall are helpful now, too (and isn’t there a self-governance cert petition pending right now??!?!). Learning about how every dime of the profits of tribal enterprises goes to fund Indian education, public safety, housing, jobs, etc. (and not to individual per caps, for example) might be persuasive in a sovereign immunity case or something.

So Justice Alito’s visit might be illuminating for him, give him and his colleagues needed context, but only in the right cases.

U.S. v. New York/Oneida Indian Nation v. Oneida County — SCOTUSblog Petitions to Watch

Matthew L.M. Fletcher2 Comments

No surprise here. Here they are, from the SCOTUSblog site:

Title: United States v. State of New York
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:

Title: Oneida Nation of New York v. County of Oneida, New York
Docket: 10-1420
Issue(s): (1) Whether the court of appeals contravened this Court’s decisions in Oneida 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:

U.S. Chamber of Commerce Files Amicus Brief in Support of Arctic Slope’s Cert Petition

Matthew L.M. Fletcher1 Comment

Here is the brief:

Chamber of Commerce Amicus Brief FINAL

The cert petition is here. The Chamber of Commerce also filed an amicus brief supporting tribal interests in Cherokee Nation v. Leavitt.

Seneca Telephone v. Miami Tribe Cert Petition

Matthew L.M. Fletcher1 Comment

Here (updated 8/24/11 with better pdf):

Seneca Telephone Cert Petition

Questions Presented:

1. Under federal preemption principles invoked in Rice v. Rehner, 463 U.S. 713 (1983), and specifically, the principles determinative on the applicability of the doctrine of tribal sovereign immunity in a regulatory context, did the Oklahoma Supreme Court err and issue a conflicting ruling with this Court’s decision in Rice when it failed to apply the preemption principles to the present cases?
2. Under the preemption principles invoked in Rice, as applied to the present cases, does the Communications Act of 1934 (47 U.S.C. §§ 151et. seq.) delegate to the States the authority to exercise jurisdiction over tribal entities when Congress confers to the States the power to exercise jurisdiction over all intrastate communications?
Lower court materials are here.

Second Addendum — All the Supreme Court Citations to Indian Law Articles

Matthew L.M. Fletcher1 Comment

Here is the second addendum — all the Indian law (and some history and politics) articles cited by the Supreme Court going back to 1959, and the case/opinion in which they were cited. The original list was here and the first addendum here.

Anders, Indians, Energy, and Economic Development, 9 J. Contemp. Business 57 (1980).

* Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) – 1 time by dissent (Blackmun)

Ansson,  State Taxation of Non–Indians Who Do Business With Indian Tribes: Why Several Recent Ninth Circuit Holdings Reemphasize the Need for Indian Tribes to Enter Into Taxation Compacts With Their Respective States, 78 Ore. L.Rev. 501, 546 (1999)

* Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005) – 1 time in Ginsburg dissent

Barsh, The Illusion of Religious Freedom for Indigenous Americans, 65 Ore.L.Rev. 363, 369-374 (1986)

* Employment Division v. Smith, 494 U.S. 872 (1990) – 1 time by dissent (Blackmun)

Benjamin, Equal Protection and the Special Relationship: The Case of Native Hawaiians, 106 Yale L.J. 537 (1996)

* Rice v. Cayetano, 528 U.S. 495 (2000) – 1 time by majority (Kennedy)

 Berger, Indian Mineral Interest-A Potential for Economic Advancement, 10 Ariz.L.Rev. 675 (1968)

* Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972) – 1 time by dissent (Douglas)

Burnett, An Historical Analysis of the 1968 “Indian Civil Rights” Act, 9 Harv.J.Legis. 557, 574-602, 603 (1972)

* Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) – 1 time by majority (Marshall)

Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan.L.Rev. 500 (1969)

* United States v. John, 437 U.S. 634 (1978) – 1 time by majority (Blackmun)

* Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) – 1 time by majority (Marshall)

Campisi, The Oneida Treaty Period, 1783–1838, in The Oneida Indian Experience: Two Perspectives 48, 59 (J. Campisi & L. Hauptman eds.1988) 

* City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) – 2 times in majority (Ginsburg)

 

Chambers & Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 Stan. L.Rev. 1061, 1061-1068 (1974)

* United States v. Navajo Nation, 537 U.S. 488 (2003) – 1 time in Souter dissent

* Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985) – 1 time by dissent (Brennan)

 

Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan. L.Rev. 979, 1002-1003 (1981)

* United States v. Navajo Nation, 537 U.S. 488 (2003) – 1 time in Souter dissent

Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 505 (1976)

* Duro v. Reina, 495 U.S. 676 (1990) – 1 time in majority (Kennedy)

Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L.Rev. 17, 23–38 (1979)

* City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) – 1 time in majority (Ginsburg)

* Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) – 1 time in Souter dissent

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 2 times by dissent (Blackmun)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 2 times by majority (Powell)

Cohen, Original Indian Title, 32 Minn.L.Rev. 28 (1947)

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 1 time by dissent (Blackmun)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 1 time by majority (Powell)

* United States v. Dann, 470 U.S. 39 (1985) – 2 times by majority (Brennan)

Cohen, Indian Rights and the Federal Courts, 24 Minn.L.Rev. 145, 153 (1940)

* Organized Village of Kake v. Egan, 369 U.S. 60 (1962) – 1 time by majority (Frankfurter)

Cohen, Spanish Origin of Indian Rights, 31 Geo.L.J. 1 (1942)

* United States v. Dann, 470 U.S. 39 (1985) – 1 time by majority (Brennan)

* Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) – 1 time by majority (Marshall)

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