Supreme Court

Cert Petition in Rosales v. United States

Matthew L.M. Fletcher

Here is the petition: Rosales Cert Petition

The unpublished Federal Circuit decision is here.

The questions presented are:

This Court holds that the Indian Reorganization Act (“IRA”), 25 U.S.C. §479, “limits the Secretary’s authority to taking land into trust for the purpose of providing land to members of a tribe that was under federal jurisdiction when the IRA was enacted in June 1934.” Carcieri v. Salazar (“Carcieri”), 129 S.Ct. 1058, 1061 (2009), now followed by the District of Columbia Circuit in Patchak v. Salazar (“Patchak”), No.09-5324,2011 WL 192495 (D.C. Cir. 2011).

Here, the Federal Circuit held in conflict with these decisions, that whether the tribe was under Federal jurisdiction in 1934 was irrelevant, in determining whether the tribe became a beneficial owner of Indian trust land. The questions presented are:

1. Must a court decide whether a tribe was under Federal jurisdiction in 1934, whenever a tribe claims an interest in Indian trust land adverse to a state or individual’s interest in that property?

2. Must a court decide whether a tribe was under Federal jurisdiction in 1934, when determining the timeliness of Petitioners’ Tucker Act claims that the tribe never became a beneficial owner of Indian trust land?

3. Must a court decide whether a tribe was under Federal jurisdiction in 1934, in determining whether the tribe was a required, but absent party, claiming an interest in Petitioners’ beneficial interest in trust property?

An excerpt from the lower court decision:

Continue reading →

SCOTUSBlog: Former SGs and the Supreme Court Bar

Matthew L.M. Fletcher1 Comment

From SCOTUSBlog:

Former SCOTUSblog intern Matthew Sundquist discusses the effects that former Solicitors General have had on the development of a specialized Supreme Court bar.

Until recently, Matt Sundquist was a Fulbright Scholar in Argentina.  He is  a graduate of Harvard College and was an intern for SCOTUSblog in the winter of 2009-2010.

As of the end of the Court’s October Term 2009, the past ten former Solicitors General had argued a combined 357 cases.  Recent former Solicitors General have participated in some of the Court’s most significant recent cases: Greg Garre in Christian Legal Society v. Martinez (2010); Seth Waxman and Ted Olson in Citizens United v. FEC (2010); Paul Clement in McDonald v. Chicago (2010); and Walter Dellinger in District of Columbia v. Heller (2008).  Former Solicitors General are in many ways the stars of the Supreme Court bar, heading Supreme Court litigation practices at large firms and handling the briefing and arguments for big cases.  This trend is relatively new: although former Solicitors General from 1952 to 1980 became professors, judges, or private practitioners, and those from the 1980s and early 1990s generally litigated as consultants or independently, the past five former Solicitors General (with the exception of Elena Kagan, who is now a Justice on the Court) manage Supreme Court litigation practices.  In a recent paper in the Charleston Law Review, summarized in this post, I document this trend, explain the advantages that former Solicitors General can offer as litigators, and conclude that a variety of factors – including financial incentives, the rise of a Supreme Court bar, career obstacles, and a demand for sophisticated litigators – facilitated the trend.

Special relationships and responsibilities

Historically, the Solicitor General has had unique relationships throughout government: he (this post will use “he” because all former Solicitors General except for Elena Kagan are male) is appointed by, and serves an advisor to, the executive; he defends laws passed by the legislative branch; and he works primarily in the domain of the judical branch, where he supervises litigation by the government in both the Supreme Court (including amicus filings and oral arguments) and the lower federal courts.  The Solicitor General often plays a unique role at the Court:  he can confess error – even if the government prevailed – if he believes that a lower court decision was wrong, and he may decline to defend a statute that he regards as unconstitutional.  Finally, the Court often relies on the Solicitor General to help it to choose its cases by asking the Solicitor General – in a case in which the United States is not a party – to file a brief expressing the views of the United States.    Over the past four Terms, when the Office of the Solicitor General responded to such a Call for the Views of the Solicitor General (CVSG) by recommending that the Court grant certiorari, the Court agreed a remarkable ninety-seven percent of the time, and it agreed with the Solicitor General’s overall recommendations eighty-six percent of the time.  This unique role and the trust that the Office of the Solicitor General enjoys allows the Solicitor General to hone his lawyering skills and gain the respect of Justices and other repeat players at the Court.

A new trend

Continue reading →

EEOC Files Conditional Cross-Petition in Navajo Tribal Preference Case

Matthew L.M. Fletcher1 Comment

Here: EEOC Conditional Cross-Petition

The question presented:

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.

The cert petitions filed by Peabody Coal and the Navajo Nation are here.

SCOTUSblog Commentary on Bullcoming: Scalia Biggest Defender of Bullcoming’s Position

Matthew L.M. Fletcher

From SCOTUSblog:

Two days after winding up, quite angrily, on the losing end of a major criminal law ruling, Justice Antonin Scalia moved energetically on Wednesday to try to make sure it does not happen again — at least not in the next case up on the same issue.  The Court’s most determined protector of criminal suspects’ rights to confront their accusers, Scalia spent a good deal of time trying to bolster the argument of a defense lawyer for a New Mexico man convicted of drunk driving based, in part, on a crime lab report.  As it turned out, the lawyer did not seem to need all that much help.

The case of Bullcoming v. New Mexico (09-10876), heard Wednesday, is not a direct sequel to the Court’s decision, handed down Monday in Michigan v. Bryant (09-150), but each of the two cases provides an important test of where the current Court is going with its interpretation of the Sixth Amendment’s Confrontation Clause. For the past five years, the Court has been moving, more or less steadily, to expand the right of confrontation.

Bryant, however, created — over Scalia’s strenuous dissent — what may turn out to be a sizable loophole in the right of confrontation, by widening an exception to the Clause’s requirement that an out-of-court statement cannot be used if the source of the statement does not show up to be challenged at trial.  A statement making an accusation, the Court ruled, may be used as evidence if police got it while trying to deal with an emergency, even if the source of that statement had died before the trial.

Bullcoming gives Scalia — and defense lawyers — a chance to shore up confrontation, if the Court were to hold that a crime lab report cannot be used unless prosecutors bring to court for cross-examination the lab technician who actually did the test and signed the report.   Stanford law professor Jeffrey L. Fisher, representing convicted drunk driver Donald Bullcoming, found in his argument — early and throughout — that the Justices were mainly interested only in the details of how such a requirement would work.  The notion that the lab expert most acquainted with the report could be replaced by a substitute witness seemed to draw no noticeable support from the bench.

Still, each time Fisher gave an answer to a question that suggested to Scalia that a concession might be in the making, the Justice pounced, seeking to solidify Fisher’s basic point that the Confrontation Clause demands the presence at trial of the person whose statement is to be used against the accused — the “default rule” of actual confrontation.  Indeed, when Justice Ruth Bader Ginsburg opened with a question about letting a lab expert testify by video rather than in person, and Fisher resisted but left an opening for some future case, Scalia moved in rapidly to scotch the idea.

Continue reading →

Update in South Dakota v. Yankton Sioux Tribe Cert Petitions

Matthew L.M. Fletcher1 Comment

Yankton Sioux Tribe has filed two cert petitions of its own. The first is a conditional cross-petition in the South Dakota v. Yankton Sioux case — Yankton Cross-Petition.

The question presented there:

Whether the Yankton Sioux Reservation includes all lands within its original boundaries other than those the Tribe ceded to the United States for sale to non-Indians in the Act of 1894, ch. 290, 28 Stat. 286, 314-19.

The second is a cert petition captioned Yankton Sioux Tribe v. United States Army Corps of Engineers — Yankton Sioux v. US Army Corps Cert Petition.

The question presented there:

The court of appeals held in this case that land transfers by the United States Army Corps of Engineers to the State of South Dakota pursuant to the Water Resources Development Act of 1999 did not violate §§ 605(b)(3) and (c)(1)(B) of that Act because they did not include lands within the “external boundaries” of the Yankton Sioux Reservation. The petitions and conditional cross-petition for a writ of certiorari in Nos. 10-929, 10-931, and 10-932 concern the boundaries of that reservation. The question presented is whether to hold this petition and then dispose of it as appropriate in light of the Court’s disposition of those other petitions.

Bullcoming v. New Mexico Argument on Wednesday

Matthew L.M. Fletcher

Here are the details from Scotusblog:

Issue: Whether the Confrontation Clause permits the prosecution to introduce testimonial statements of a nontestifying forensic analyst through the in-court testimony of a supervisor or other person who did not perform or observe the laboratory analysis described in the statements.

Plain English Issue: When the prosecution introduces a forensic evidence report, it ordinarily must bring the author of the report to the trial so the defendant can question him. Is it sufficient for the prosecution to bring the analyst’s supervisor, when the supervisor did not actually perform or witness the forensic tests?

Briefs and Documents

Merits Briefs

Amicus Briefs Continue reading →

U.S. v. Jicarilla Apache — Opening Government Merits Brief

Matthew L.M. Fletcher

Here.

Note from Patricia Millett on the Developments in the Osage Case

Matthew L.M. Fletcher3 Comments

[Moved up from James Meggesto’s comment.]

A quick note from Patricia Millett – who has been handling the case for the Osage Nation at the Supreme Court level – for those readers that may be interested in the background and timing going forward. On March 5, 2010, the Tenth Circuit held that the Osage Nation’s reservation had been disestablished, and it did so in the acknowledged absence of any textual direction from Congress and despite recognition of the Reservation by the Executive Branch of the U.S. Government. After the Tenth Circuit denied rehearing, the Osage Nation filed a petition for certiorari with the Supreme Court seeking review of a conflict in the circuits concerning the proper mode of analyzing disestablishment questions. Today’s order from the Supreme Court calling for the views of the Solicitor General on the Nation’s petition is a significant development in the case because it signals that the Supreme Court is looking seriously at the petition, and the United States’ views on this important question will now be officially obtained for the first time in this case. Indeed, one might question whether, as a basic matter of separation of powers, a court could hold that a reservation has been disestablished without any express direction from Congress or obtaining the views of the United States government. Given the timing of the Court’s order, it is likely that the United States will file its brief in response to the Court’s order in May and the Court will act on the petition before the end of the Term in June.

Supreme Court Calls for the Views of the Solicitor General in the Osage Reservation Disestablishment Case

Matthew L.M. Fletcher1 Comment

Here is today’s order, with the Osage Nation v. Irby petition mentioned on page 2.

Cert stage briefs are here.

This is the sixth CVSG in an Indian law cases in the last two years.

Winnemucca Colony Council v. Wasson Cert Petition

Matthew L.M. Fletcher2 Comments

Here: Winnemucca Colony Council Cert Petition

Questions presented:

1. Whether the United States Federal District Court exceeded its powers by interjecting itself into the fray of competing tribal factions within a single tribal government to determine which faction shall have control over tribal treasury resources thereby imputing governmental control of the tribe to that faction in contradiction to policies of self-determination and self-governance under 25 U.S.C. § 450n and other individual sections of the Indian Self Determination Act.

2. Whether under 25 U.S.C. § 450b(l) the United States Court of Appeals for the Ninth Circuit erred in upholding the District Court’s Order awarding tribal funds to a faction unrecognized by the BIA but purporting to be the legitimate governing body of the tribe even though the faction was not democratically elected by eligible voters of the Indian community.

Lower court materials here.