Supreme Court – Page 133

Truckee-Carson Irrigation District Cert Petition

September 28, 2010September 27, 2010Matthew L.M. Fletcher

Here is the petition in Board of Directors, Truckee-Carson Irrigation District v. United States: Truckee-Carson Irrigation District Cert Petition.

Lower court materials here.

Questions presented:

1. Whether the Congress violates the separation of powers doctrine under Article III of the United States Constitution by enacting retroactive legislation that requires a court to accept a past federal regulation as currently valid, enforceable and immune from judicial challenge, the underlying premise of which was previously found by an all-inclusive federal water rights adjudication proceeding as violating vested water rights confirmed under a final federal district court water decree and judgment.

2. Whether a federal court has either the legal or equitable jurisdiction to make an award of pre-judgment or postjudgment in-kind interest, that is, interest that is payable in property, in this case water as interest, and not money.

Updated Preview of 2010 Supreme Court Term

September 27, 2010October 18, 2010Matthew L.M. Fletcher5 Comments

One petition has already been granted (United States v. Tohono O’odham), and three petitions are up for review at today’s conference. There could be six or more Indian law-related Supreme Court cases decided this Term, more than any Term in the last few decades. Note that the of the seven cases listed here, only one was filed by an Indian or Indian tribe (no. 4, the Iron Thunderhorse case, which likely has no real chance of being granted). The rest were filed by either a state government or subdivision, or the federal government.

As noted in our earlier comments on today’s SCOTUSblog petitions to watch, petitions filed by tribal interests tend to disappear. That means that petitions brought by tribal interests to challenge the denial of Schaghticoke federal recognition (which, if you’ll recall, was initially favorable until a private meeting with then-Secretary Norton and several powerful Connecticut politicians), Indian self-determination act challenges, a challenge to the application of the tobacco Master Settlement Act to on-reservation sales, and others probably will die on the vine.

Here’s an update to our early preview (available here).

Petition Granted:

1. United States v. Tohono O’odham Nation (09-846)

Question presented:

Under 28 U.S.C. 1500, the Court of Federal Claims (CFC) does not have jurisdiction over “any claim for or in respect to which the plaintiff * * * has * * * any suit or process against the United States” or its agents “pending in any other court.” The question presented is: Whether 28 U.S.C. 1500 deprives the CFC of jurisdiction over a claim seeking monetary relief for the government’s alleged violation of fiduciary obligations if the plaintiff has another suit pending in federal district court based on substantially the same operative facts, especially when the plaintiff seeks monetary relief or other overlapping relief in the two suits.

This is a case in which Justice Kagan will have to sit out, due to her participation as Solicitor General. For the T.O.N., it might be a good thing, in that the respondents now only need four votes to prevail.

Petitions on the SCOTUSBlog “Petitions to Watch” for Today’s Long Conference:

2. Hogan v. Kaltag Tribal Council (09-960)

Question presented:

Whether, for purposes of the Indian Child Welfare Act of 1978, 25 U.S.C. 1901 et seq., a tribal court has
concurrent jurisdiction with state courts to initiate and adjudicate a child-custody proceeding about an Indian child, when the child and her biological mother are tribal members and the nonmember biological father does not object to tribal-court jurisdiction, and when the child is not domiciled or residing within a reservation. [Note: This is the OSG’s statement of the question presented, brought in opposition to the petition.]

3. Gould v. Cayuga Indian Nation (10-206)

Question presented:

I. Whether the New York State Court of Appeals in its 4-3 decision in Cayuga Indian Nation of New York v. Gould, 14 N.Y.3d 614 (2010), properly interpreted federal law on a matter it believed the United States Supreme Court had not yet addressed in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance.

II. Whether in that decision the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua despite the fact that the Cayuga Indian Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.

4. Iron Thunderhorse v. Pierce (09-1353)

Question presented:

Whether the court of appeals misinterpreted the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc et seq., to require only a minimal showing that a prison grooming rule which concededly imposes a substantial burden on religious exercise is the “least restrictive means of furthering [a] compelling governmental interest.”

Additional Petitions Not Yet Distributed but Likely to be “Petitions to Watch”:

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SCOTUSBlog Petitions to Watch for the “Long Conference” and Commentary

September 27, 2010September 27, 2010Matthew L.M. Fletcher

Three petitions have made the famed SCOTUSblog list of petitions to watch for the long conference today. We wonder whether virtually every Indian law related case makes the list these days, but that’s not really true.

Interesting cases that are on the docket but don’t make the list are Fort Peck v. HUD (10-195), Maybee v. Idaho (09-1471), Metlakatla v. Sebelius (09-1466), and Schaghticoke v. Salazar (09-1433). Note that all four of these petitions were filed by tribal interests. As we say every time, note the general trends in Indian law cases in the Supreme Court petition stage: (1) the United States’ petitions are granted about 2/3 of the time, or more; (2) petitions by states and their subdivisions are granted about 1/3 of the time; (3) petitions by tribes are almost never granted. And even the OSG’s influence wanes when supporting tribal interests.

Other cases that rightfully do not belong on this list include Hoffman v. Sandia Pueblo (10-4) for reasons we’ve already discussed.

Here is the link, and the SCOTUSblog coverage of each petition:

Title: Gould v. Cayuga Indian Nation
Docket: 10-206
Issue(s): 1) Whether, on a matter that it believed the Supreme Court had not yet addressed, the New York Court of Appeals properly interpreted federal law in holding that two parcels of land purchased by a successor to the historic Cayuga Indian Nation in 2003 and 2005 were exempt from New York’s cigarette sales and excise taxes after two hundred years of non-Indian ownership and governance; and 2) whether the New York Court of Appeals properly held both that (i) the Cayuga Indian Nation possessed a federal reservation pursuant to the 1794 Treaty of Canandaigua, notwithstanding that the Nation had ceded all of its land to New York State in 1789; and (ii) the United States did not subsequently disestablish any purported federal reservation.

Certiorari-Stage Documents

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Cert Opposition in Suquamish v. Upper Skagit et al.

September 26, 2010Matthew L.M. Fletcher

Here: Cert Opp in Suquamish v Upper Skagit et al

Cert petition is here.

United States v. Jicarilla Apache Tribe Cert Petition

September 21, 2010Matthew L.M. Fletcher

Here: Jicarilla cert petition, and the appendix, Final Jicarilla App.

Lower court materials here.

Question presented:

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.

Oneida Indian Nation Brief in Opposition to Madison County Cert Petition

September 20, 2010Matthew L.M. Fletcher1 Comment

Here: Oneida Brief in Opposition to Cert Petition.

The petition and links to lower court materials here.

Enviro Groups File Cert Petition in HRI/Navajo Uranium Mining Case

September 17, 2010September 17, 2010Matthew L.M. Fletcher

The case is captioned Morris v. United States Nuclear Regulatory Commission. Petition here. Lower court materials here [corrected link, thanks to A.T.S.].

Questions presented:

1. In determining whether public radiation doses from a proposed new uranium mine would exceed regulatory limits, could the U.S. Nuclear Regulatory Commission (“NRC”) interpret 10 C.F.R. § 20.1301(a)(1) to allow it to ignore radioactive emissions from existing uranium mine waste on the mine site?

2. Where, in establishing a groundwater restoration surety for a proposed uranium mine, the NRC failed to follow its own criteria for protecting the drinking water on the site, did the NRC violate the Atomic Energy Act’s prohibition
against licensing operations that are inimical to public health and safety?

News coverage from Law360 (miigwetch to J.W.):

Environmental and Native American groups on Thursday launched a last-gasp effort to fight proposed in situ leach uranium mining in northwestern New Mexico that they allege will contaminate large areas of groundwater, including a primary drinking water source for 15,000 Navajos.

In a petition for a writ of certiorari, the Eastern Navajo Dine Against Uranium Mining, a Navajo community organization; the Southwest Research and Information Center, an environmental education organization; and two local ranchers, Grace Sam and Marilyn Morris, asked the U.S. Supreme Court to overturn a March 2010 ruling from the U.S. Court of Appeals for the Tenth Circuit.

The groups said that under the Tenth Circuit’s ruling, Hydro Resources Inc. would not have to clean up existing Cold War-era radioactive waste on its property, and that both the old waste and new mining would expose residents to dangerous levels of radiation.

This is the first time that the U.S. Nuclear Regulatory Commission has licensed a mining operation in a community drinking water supply, despite the fact that no aquifer in which in situ leach uranium mining has occurred has ever been restored to premining condition, according to the groups.

Moreover, the government has allegedly not required an adequate bond to clean up the mine should HRI — a subsidiary of the Texas-based Uranium Resources Inc. — walk away from the site.

“The community is letting the government know that they will not give up the fight and they will continue resisting these proposed uranium mines,” said Eric Jantz, an attorney with the New Mexico Environmental Law Center who is representing the plaintiffs.

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