Here: Glacier Elec Reply Brief
Glacier Electric Coop. Reply to Cert Opposition
Here: Glacier Elec Reply Brief
Supreme Court
U.S. v. Tohono O’odham Oral Argument Recap (Patricia Millett and James Meggesto)
United States v. Tohono O’odham Nation
No. 09-846
Argument Recap
On Monday, the Supreme Court heard oral argument in United States v. Tohono O’odham Nation, No. 09-846, an important case concerning the ability of Indian tribes and a broad range of other potential plaintiffs (such as government contractors and plaintiffs challenging regulatory takings) to obtain full redress for claims they have against the United States government. The case concerns the proper interpretation of 28 U.S.C. § 1500, a statute that strips the Court of Federal Claims (“CFC”) of jurisdiction over any claim “for or in respect to which” the plaintiff has another claim pending in federal district court. Since the CFC is, for most intents and purposes, the only court that can provide monetary relief to plaintiffs in claims against the United States, the question under the statute that this case presented is whether plaintiffs that have claims for equitable relief (here, an accounting) already pending in federal district court can then seek money damages in the CFC for the United States’ breach of its duties managing that same trust in the CFC. Anthony Yang argued the case for the Government while Danielle Spinelli argued the case for the Tohono O’odham Nation.
Unlike some recent Supreme Court cases involving issues implicating tribal interests (such as Plains Commerce Bank or City of Sherrill), the Justices’ questions suggested that they found difficulties with both sides’ positions and were struggling to understand the practical implications of a ruling for either side. In particular, given some skeptical questions asked by Chief Justice Roberts, it was far from clear that a majority of the Court would be willing to adopt the very broad rule sought by the Government , which would preclude CFC jurisdiction in any case in which a “related” case is pending in another court, even if it seeks different relief. Justice Ginsburg tested the limits of that position early in the argument by asking Mr. Yang whether sequential suits could be brought such that a case brought to final judgment in the district court could then be brought in the CFC. While he conceded that the statute did allow for such sequencing, he nonetheless recognized that some suits may not be completed before the statute of limitations would run on the CFC claim. He argued that Congress, aware of the possibility that complete relief may not be available to a plaintiff depending on the timing, nevertheless enacted Section 1500, knowing that plaintiffs would be forced to choose to pursue their claims in the CFC or the district court but not both. Thus, if there are hardships created by that “strict” reading of the statute, Yang argued, Congress can remedy the situation. But the Court should not permit parties to take “two bites at the apple.”
Chief Justice Roberts appeared to take issue with such a simplified view of the statute and the potential harm that could be caused by the adoption of the rule the Government would have and, to that end, pressed Yang on the precise contours of accounting claims and the type of relief they afford. Indeed, the Chief Justice appeared to agree, as the Nation had argued in its briefing, with the distinction between an accounting claim in the district court – which essentially asks “what have I got in my account” – and a claim that seeks money damages for breach of obligations regarding that same trust account.
Initial Reaction to Tohono O’odham Argument
Note: We anticipate commentary from additional experts as well a little later.
Despite an opening flurry of difficult questioning for the government’s counsel, today’s oral argument exemplifies the tough road Indian nations face when litigating in the Supreme Court. Today’s case concerns the rather arcane civil procedure question of whether a party suing the government for money damages in the Court of Federal Claims can bring a second/simultaneous suit in federal district for injunctive remedies that may or may not be available in the CFC.
Early questioning from Justices Sotomayor, Ginsburg, and Breyer (and even Chief Justice Roberts to some extent) forced the government lawyer to concede that there may be a “tough choice” for plaintiffs to make when suing the government in certain instances — sue for money damages or sue for injunctive relief, but not both — with the only remedy left being a trip to Congress to change the outcome.
At page 20 of the transcript, Justice Breyer asked the following question:
Cert Opposition in Glacier Elec. v. Estate of Sherburne
Here: Sherburne Cert Opp
Osage Nation Files Cert Petition in Indian Lands Case
Here are the early materials in Osage Nation v. Irby:
No. 10-__ Appendix Proof 10-21-10
Questions Presented:
In Solem v. Bartlett, 465 U.S. 463 (1984), this Court held that “only Congress can divest a reservation of its land and diminish its boundaries,” and Congress’s intent to do so must be “explicit[]” and “unequivocal,” id. at 470-471.
The Questions Presented are:
I. Whether, in determining whether Congress disestablished an Indian reservation, express statutory text, unequivocal legislative history, and the expert view of the Executive Branch are controlling, as the Second, Eighth, and Ninth Circuits have ruled, or whether, instead, other indicia external to the statutory text and federal government’s view, such as modern demographics, can override unambiguous statutory text, as the Tenth Circuit and Seventh Circuit have held.II. Whether the court properly ruled that the Osage Nation’s reservation has been disestablished in the absence of unambiguous statutory direction and without obtaining or considering the position of the United States government.
Why Does the Supreme Court Grant Cert Petitions Almost Exclusively Against Tribal Interests?
It’s a long enough answer, full of subjectivity, but worth discussion in the context of the United States v. Tohono O’odham Nation case, to be argued Nov. 1.
Why is this case so important? There’s no split in authority to be seen, and there hasn’t even been a judgment against the United States yet. So under Supreme Court Rule 10, we’re left with “importance” or the “gross error” of the lower court.
The real question is whether the United States must defend two sets of claims filed in different courts. Money claims against the U.S. are normally filed in the Court of Federal Courts, and other claims can be filed in district court. TON filed a claim for equitable relief in DCT, and then a money damages claim in the CFC. The question is whether both claims are allowable under 28 USC 1500 (in other words, are they different claims).
So what’s so important about this case? Why now? Why not wait to see if the government loses a money judgment?
Perhaps the “importance” of money claims is the possible magnitude of them. Remember, the damages award in the Navajo Nation Peabody Coal claim was $600 million (and upwards of $1 billion after interest); the original Black Hills award was $17.5 million (now much more than that); and the Cobell award could have been billions (and the settlement was around $3 billion). Who else has repeated money claims of that magnitude against the federal government?
Indian tribes, that’s who.
News Coverage of Madison County v. OIN
From How Appealing:
“U.S. Supreme Court to hear Oneida Indian Nation foreclosure case”: The Utica Observer-Dispatch contains this article today.
At What Point Does Indian Country Boycott the Supreme Court?
Seriously. Georgia did it in the Cherokee cases — they raised their sovereign immunity defense and literally filed no briefs and made no appearance at oral argument. [Of course, that wouldn’t happen now if a party refused to appear — the Court would appoint counsel to argue the case.]
It would be a radical move, and must be strategic. My guess is the best (and perhaps only) time to try it is when the Supreme Court accepts jurisdiction over a case entirely under its common law jurisdiction. An example would be the Court’s review of tribal court jurisdiction over nonmembers, reviewable not through authorization from Congress but solely under the Court’s decision in National Farmers Union, which created both a federal right and a federal remedy. Federal courts could still properly review tribal court jurisdiction when a party is seeking to enforce a tribal court order in federal court.
Or maybe the boycott should occur where the Court is reviewing treaty language, as Rob Porter and others have suggested.
The main problem here is that tribal interests want to win these cases, and, well, they won’t if they don’t show up. So we’ll keep following the Supreme Court, which will issue some orders later today that may affect Indian Country.
The Atlantic: On Snyder v. Phelps and First-Timers Arguing in the SCT
From the Atlantic:
Lawyers with no Supreme Court experience sometimes insist on going to the Show. The result can be a halting hour of argument that sometimes resembles the 1945 World Series, between two teams so war-depleted that sportswriter Warren Brown said, “I don’t think either one of them can win it.” [opening]
* * *
Alas, there’s really no need for a theological conspiracy theory. Trial lawyers often really do love their own clients and hate the people on the other side, and often can’t shut up about it. Which it is why both sides would have done better to find dispassionate appellate lawyers, who might have saved us from the possibility that a disgusted Court may make a bad decision. [ending]
TT Note: BTW, the Detroit Tigers won the 1945 World Series. Go Tigs!
On the “Supreme Court Bar” and Indian Law
The NYTs’ Adam Liptak published a fairly scathing article on the so-called “Supreme Court Bar” — the specialists that argue more than 50 percent of all Supreme Court cases now decided. It’s worth reviewing this article, especially in light of the rise of the Tribal Supreme Court Project, which has a goal of recruiting specialists to argue Indian law cases (as well as brief the merits briefs and at least some of the amicus briefs).
Given the NYTs article, which suggests that some (many?) of the Supreme Court Bar members are more interested in self-gratification than winning a case (and notes that Chief Justice Roberts once made some very disparaging remarks about them ten years ago), have tribal interests been prejudiced by the Tribal Supreme Court Project’s efforts to utilize these lawyers? Has there been any effect at all?
A few decades ago, law prof Mark Galanter argued that “repeat players” [corrected link] (“the haves”) have distinct and significant advantages over one-timers. While he didn’t emphasize the Supreme Court’s cases (or individual attorneys), his theory seems to have significant resonance in this area. It would make sense that entities that have frequently appeared in the Supreme Court would have advantages over a party that will be there once and never again. At our conference last weekend, Douglas Laycock indicated that many organizations that appear frequently as amici in the Court’s religious freedom cases are very good at organizing amici strategies, indicating that these repeat amici have advantages, too.
It would make sense that lawyers that appear frequently before the Supreme Court would have some advantage as well, especially since those lawyers likely to be retained to argue multiple cases are usually former Supreme Court clerks, current or former lawyers with the Office of Solicitor General, or otherwise exceptional appellate litigators. These factors were enough to persuade the big thinkers in the Tribal Supreme Court Project (circa 2001) to pursue a strategy of recruiting and retaining the Supreme Court Bar in future.
Our sense is that the jury’s still out. We don’t know yet whether the Supreme Court Bar makes a difference, in part because it took nearly five years to persuade the tribal clients to retain the Supreme Court Bar.
Turtle Talk 
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