Here: Final OTC Brief in Opposition
And the petition is here (again): Osage cert petition
Supreme Court
SCOTUSBlog Petition of the Day: Miccosukee v. Kraus-Anderson
Here. Interesting petition, if for no other reason than the respondent supports the petition (!!!).
Title: Miccosukee Tribe v. Kraus-Anderson Construction Co.
Docket: 10-717
Issue(s): Whether an action to obtain recognition of an Indian tribal court judgment presents a federal question under 28 U.S.C. § 1331.
Certiorari-Stage Documents:
- Opinion below (11th Cir.)
- Petition for certiorari
- Respondent’s brief in support of petition for certiorari
ETA-the petition was listed as a petition to watch by SCOTUSblog on 1/20 because it will likely be considered by the Justices at their 1/21 conference.
Commentary on Cert Denial in Thunderhorse
With no fanfare, the Supreme Court denied cert in Thunderhorse v. Pierce (order list here). Given that it was an unpublished per curiam opinion, we never even knew about it until SCOTUSblog listed it as a petition to watch, and then the Court asked for the views of the Solicitor General on the petition.
In relatively rare circumstances, the Supreme Court will grant certiorari in a case where the lower court has committed what the Court sometimes calls a “gross error.” The classic case is the application of the wrong standard or legal rule in deciding the case. This case is noteworthy because the SG argued (the invitation brief is here) that the Fifth Circuit applied the wrong law, and suggested that the Court could summarily reverse the lower court and remand for application of the correct standard.
Here is the key portion of the Solicitor General’s invitation brief:
Supreme Court Vacates and Remands Madison County v. Oneida
Here is the order.
U.S. v. Jicarilla Apache Materials (so far)
As you know, the Supreme Court granted the government’s cert petition in United States v. Jicarilla Apache Nation. Here are links to materials we’ve collected on the blog over the last few months.
Justice Kagan has recused.
Today’s Supreme Court Conference: Indian Law Petitions Up for Discussion
There are two (actually three) petitions that will be discussed at least indirectly at today’s Conference (SCOTUSblog link here). We will know Monday if any of these petitions are granted, and later in the week if any are denied. In order of our estimates of the chance of a grant, here they are:
Significant likelihood (perhaps over 50 percent), based entirely on the fact that the Court typically grants far more than half of the federal government’s cert petitions:
Title: United States v. Jicarilla Apache Nation
Docket: 10-382
Issue(s): Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.
Certiorari-Stage Documents:
Likely being held for discussion depending on the determination in Jicarilla is the U.S. v. Eastern Shawnee petition (here).
Obama Names Litigator with Indian Law Experience as Head of Office of Legal Counsel
Obama named Virginia Seitz as his nominee to head the Office of Legal Counsel. Ms. Sietz has fairly extensive experience in Indian law appellate advocacy.
Here is a list of her Indian law cases:
Representing Tyson Foods in opposition to the Cherokee Nation’s claim to intervene: Tyson Brief Opposing Cherokee
Benally v. United States: NCAI Brief Supporting Navajo Cert Petitioner
Hawaii v. Office of Hawaiian Affairs: Amicus In Support of Office of Hawaiian Affairs
U.S. v. Navajo Nation II: Navajo Nation Merits Brief and Navajo Cert Opp
Plains Commerce Bank: NCAI Brief Supporting Long Family
Wagnon v. Prairie Band: NCAI Brief Supporting Prairie Band Potawatomi
U.S. v. Lara: NCAI Brief
Thanks to A.K. for the tip.
Non-Indian Business Concurs in Miccosukee Tribe Cert Petition over Enforcement of Tribal Court Judgments
Very surprising! It is exceptionally rare for a private, non-Indian respondent that has won below to file a brief in support of a tribal cert petition.
Here is the brief: Kraus-Anderson Brief in Support of Petition
And the petition, with link to lower court materials.
Cert Petition in Hawaiian Blood Quantum Dispute
Here is the petition in Day v. Apoliona: Day Cert Petition
Question presented:
Whether officials of the State of Hawaii may expend funds subject to the trust established by § 5(f) of the Hawaii Admission Act for the betterment of Hawaiians without regard to the blood quantum established by § 201(a)(7) of the Hawaiian Homes Commission Act, 1920?
Lower court opinion here.
API v. Sac and Fox Reply Brief in Support of Cert Petition
Here: API Reply.
The petition (No. 10-613) is up for discussion in the Conference of Jan. 14, 2011.
Turtle Talk 
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