Supreme Court

Andrew Cohen Criticizes Supreme Court over Jicarilla Decision

Matthew L.M. Fletcher4 Comments

Here is the article, from the Atlantic.

An excerpt or two:

The United States Supreme Court Monday once again stuck it to Native American litigants. In a 7-1 opinion (Justice Elena Kagan recused), the Court sided with the U.S. government and against theJicarilla Apache Nation in a fiduciary-duties case brought by the Nation to determine whether and to what extent federal officials mismanaged the tribe’s money. The decision was hardly sweeping– it involved a discovery dispute and the application of the attorney-client privilege– but it’s still worth a closer look.

The Nation sued the feds in 2002 asserting that the government breached its fiduciary duty to properly manage funds generated from the culling of timber, gravel and oil and gas resources from the Tribe’s land in Northeastern New Mexico. As all plaintiffs do, the Nation sought through discovery access to government documents that its lawyers thought might help establish that federal officials “failed to maximize returns on trust funds, invested too heavily in short-term maturities, and failed to pool its trust funds with other tribal trusts.”

For six years, the Tribe and the government futzed around in “alternative dispute resolution” trying to reach a settlement. During this time, the feds turned over thousands of relevant documents to Tribal attorneys but failed to produce 226 documents which government officials said were protected by the “attorney-client privilege, the work-product privilege, or the deliberative-process privilege.” The tribe went to court seeking to compel the production of those documents, arguing that its interests fell under a widely-acknowleged exception to the general rule that such documents may lawfully be protected from disclosure.

And in a biting critique:

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Indian Law Supreme Court Petitions Update

Matthew L.M. Fletcher

The next two Supreme Court conferences will be big ones in Indian Law. Here is a roster of cases that will be considered:

June 16, 2011

Miccosukee Tribe v. Kraus-Anderson

 

South Dakota et al. v. Yankton Sioux 

June 23, 2011

Brown v. Rincon Band

Osage Nation v. Irby

 

 

 

Speculation on the Delay in Issuing the U.S. v. Tohono O’odham Nation Opinion from SCOTUSBlog

Matthew L.M. Fletcher
Recall our speculation on the seeming delay in the issuance of the TON opinion? Here is some more speculation from today’s SCOTUSblog Live Blog.
9:50
Tom:

It’s possible that they won’t be the authors of those two decisions, however.  One might have lost a majority opinion.
9:51
Tom:

For example, Justice Sotomayor might have lost the majority in United States v. Tohono O’odham Nation.
9:51
Tom:

In that case, which took longer than expected to decide (it was the next-longest-outstanding November case), she wrote a detailed concurring opinion that would have decided the case more narrowly.  Justice Kennedy ended up writing the majority opinion.

California’s Supplemental Brief in Response to OSG Recommendation to Deny Cert in Rincon Band Revenue Sharing Case

Matthew L.M. Fletcher

Here is that brief:

Supplemental Brief of Petitioners in Response to United States

The Supreme Court placed this case up for discussion at the June 23 Conference.

Osage Supplemental Brief in Response to SG’s Invitation Brief

Matthew L.M. Fletcher

Here:

Osage Supp. Br

New Turtle Talk Project: State Supreme Court Outcomes — TODAY: Montana

Matthew L.M. Fletcher6 Comments

We at Turtle Talk are going to be spending some time in the coming weeks reporting the outcomes of state supreme courts in Indian law cases. As observers know all too well, tribal interests prevail less than 25 percent of the time before the United States Supreme Court (since 1986). But what about state supreme courts?

We begin today with the Montana Supreme Court, which is an elected court. There is no intermediate court of appeals, so the Supreme Court hears all appeals. There are a smattering of unpublished decisions out of the Court as a result, but we did not count these (usually an affirmation in an ICWA case without tribal intervention).

Tribes within Montana include the Crow Nation, the Confederate Salish and Kootenai Tribes, Fort Peck, Blackfeet, Rocky Boy’s, Little Shell, Northern Cheyenne, Pend O’reille, and Fort Belknap.

A quick note about “outcomes.” We count “wins” and “losses” from the point of view of the relevant tribal government(s). This is necessarily subjective. Some cases we simply cannot clearly count as either a win or a loss (for example, we decided not to count cases where the state court held it had criminal jurisdiction over a non-Indian for a “victimless” crime on the reservation; another example, many ICWA cases where the tribe is not an intervenor). Also, we have may have missed a few.

The “win” rate for tribal interests before the Montana Supreme Court is 70 percent 68 percent.

Here is the list of cases we counted:

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Miccosukee Supplemental Brief in Support of Cert Petition in Miccosukee v. Kraus-Anderson

Matthew L.M. Fletcher

Here:

Miccosukee Supplemental Brief

Justice Breyer and “The Yale Lectures”

Matthew L.M. Fletcher1 Comment

Available here, drawing from his book Making Democracy Work.

Here is an excerpt:

After the decision [in Worcester], Justice Joseph Story wrote to his wife: “Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.” A few days later, he wrote to another
correspondent: “The Court has done its duty. Let the Nation now do theirs.” Story added: “Georgia is full of anger and violence. . . . Probably she will resist . . . , and if she does, I do not believe the President will interfere . . . .”

And that is just what happened. Georgia said it would resist the decision as a “usurpation” of power. And this is the case about which President Andrew Jackson supposedly said, “John Marshall has made his decision, now let him enforce it.”
The President considered he had as good a right as the Court to decide what the Constitution meant and how it should be enforced. Worcester stayed in jail. John Marshall wrote to Story: “I yield slowly and reluctantly to the conviction that our Constitution cannot last.”

What was wrong with Jackson’s position? The President soon found out. South Carolina, noticing what Georgia could do, decided it would follow suit— but in respect to federal taxes. It passed a law prohibiting the payment of federal customs duties. And Jackson then began to realize the threat to the Union inherent in the principle. He quickly obtained a “force bill” from Congress, authorizing him to send troops to South Carolina. And South Carolina withdrew its law. The press began to write about Georgia and the Cherokees: how did Georgia and Worcester differ from South Carolina and taxes? And Georgia began to back down. It reached an agreement with Worcester, releasing him from jail. And so the Court’s order was ultimately enforced. Or was it?

There is no happy ending here. Jackson sent troops to Georgia, but not to enforce the Court’s decision or to secure the Indians their lands. To the contrary, he sent federal troops to evict the Indians. He found a handful of Cherokees willing to sign a treaty requiring departure; he ignored 17,000 other Cherokees who protested that they would die rather than agree to go; and he forced the tribe to move to Oklahoma, walking there along the Trail of Tears, so-called because so many Cherokees died along the way. Their descendants live in Oklahoma to this day.

This episode suggests a negative answer to Hotspur’s question. The Court may follow the law—even in an unpopular matter. But that does not matter very much. Force, not law, will prevail. The summoned “spirits” will not come.

OSG Recommends Denial of Certiorari in Osage Nation v. Irby

Matthew L.M. Fletcher2 Comments

No one will read this ’til Tuesday, but here goes….

Here is the brief:

10-537 Osage Nation v Irby

EEOC v. Peabody Coal: SCOTUSBlog Petition of the Day

Matthew L.M. Fletcher

SCOTUSblog has named EEOC v. Peabody Coal Co. its petition of the day:

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:

I think this petition is a conditional cross-petition though, which isn’t up for serious consideration unless the underlying petition is granted. There are actually two — one by Peabody Coal and one by Navajo. The conditional cross-petition notes that the government will separately respond to the cert petitions.