Way out my league here, but Justice Thomas, perhaps, might think so. His reference today in McDonald v. City of Chicago to two Indian treaties from 1862 and 1868 [slip op. at 20 n. 7 (Thomas, J., concurring)] suggests that he could be thinking along those lines … or he was really struggling to find references to that language somewhere in treaty language circa 1860s.
Supreme Court
ICT Article on Elena Kagan (Senate Hearings Start TODAY!!!!)
Here is the call I made to Sen. Franken last year right before the Sotomayor hearings, and perhaps we’ll have an Indian law question for Elena Kagan.
From ICT:
WASHINGTON – With Elena Kagan’s Senate confirmation hearing looming, top Harvard University officials are defending her record on Native American issues. Meanwhile, some Indian groups and individuals are supporting her nomination to the U.S. Supreme Court, despite her largely unknown positions on Indian law.
“Elena Kagan as dean [of Harvard Law School] had such a strong interest in the issues of Indian country and Indian law that she allocated funds from her discretionary funding to support work in that area,” said Martha Minow, current dean of Harvard Law School. She said Kagan used funds to support Indian scholars, conferences, and visiting tribal law officials.
Still, some scholars have blamed Kagan for failing to racially diversify her staff when she served as dean from 2003 – 2009. Of the 32 tenured and tenure-track academic hires she made while in the position, only one was a minority, of Asian descent.
“No dean can wave a magic wand and hire anybody on a law faculty,” Minow said. “It’s not by accident that the job is often described as herding cats.”
She said Kagan made decisions on hiring women and people of color “consistent with the standards of excellence at the school.”
Indian scholars have largely been concerned that Kagan failed to hire a permanent scholar to fill the Harvard Law School’s Oneida chair, which has received substantial financial support from the Oneida Indian Nation of New York. The position was created in 2003, with the understanding that Harvard would hire a full-time, tenured faculty member dedicated to Indian law.
But Robert Anderson, who was selected after Kagan’s tenure to hold a 5-year guest position as Oneida chair, said her actions were consistent with what she could do in her position.
“It’s not really the dean’s decision to hire a person with tenure; the faculty ultimately has to decide,” said the Minnesota Chippewa tribal citizen who directs the Native American Law Center at the University of Washington.
Anderson said he supports Kagan’s high court nomination, given her background and his knowledge of her ideology from when they both served in the Clinton administration. He’s also confident that she met many scholars at Harvard who imparted the importance of understanding Indian law.
Regarding the Oneida chair, Minow said the institution is “very honored to have” the position, adding that the plan under Kagan had been to have visitors rotate into the job.
Anderson hopes that some senators will specifically ask Kagan about her knowledge of Indian law during her confirmation process.
“I don’t think she knows a lot about the intricacies of Indian law, but I believe they would find out that she knows it’s an important field.”
At least one senator seems prepared to question Kagan on tribal law. Some staffers for Sen. Al Franken, D-Minn., have requested information from Indian legal scholars in preparation for Franken’s questioning of Kagan. The senator sits on the Senate Judiciary Committee.
Beyond her involvement with Indian issues at Harvard, Kagan has had few known brushes with tribal law.
Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University, explained that Kagan was once heavily involved with the negotiation and execution of a major tobacco-related court settlement that resulted in what’s known as the master settlement agreement. The agreement is seen as harmful to some tribal tobacco interests.
Fletcher posited that if a tribal tobacco case reached the Supreme Court, “one would have to believe Kagan would not be sympathetic to Indian law claims there.”
On the more positive side, Fletcher noted that while dean, Kagan once introduced the Navajo Nation Supreme Court, calling it distinguished in quality and scope.
“She’s a relative unknown, but her centrist-liberal bona fides are established in all of her other work,” Fletcher said. “She’s no Thurgood Marshall or even a Sonia Sotomayor, but overall I’d support her.”
On Monday, Cobell Plaintiffs Moved to Withdraw the Cert Petition
According to Bill McAllister, Spokesman for Cobell Plaintiffs.
Cert Petition on Hoffman v. Sandia Resort and Casino
Available here, on Mr. Hoffman’s website. here:
UPDATE: Incidentally, Hoffman’s attorney apparently is the same Paul Livingston who challenged the Santa Fe Indian Market all those years ago in Livingston v. Ewing, known to (according to an anonymous source) “rant[] in local right wingnut rags about abolishing Indian law.”
Lower court materials here. Local TV coverage here, via Pechanga.
Questions presented:
1. Whether the doctrine of tribal immunity properly bars claims that an Indian Casino cheated a non-Indian gambler by refusing to pay a slot machine jackpot?
2. Whether the “property damage” under the waiver of immunity in Section 8 of the Tribal Gaming Compact applies only to physical damage to property?
As you might suspect, I give this petition very little chance. I would doubt any response is necessary. There’s no split in authority and the case isn’t important on a national level. As for question 1, I am always suspicious of claims that Indian casinos have cheated gamblers because casinos LOVE IT when there’s a jackpot — it means that everyone and their brother is going to show up at that casino to replicate the magic. And question 2 is just patently frivolous.
Will Cobell Be a Grant?
My guess is no, but there’s a possibility that the Court will hold the case for a period of time to allow for Congress to decide on the settlement. Not sure what the precedent is for that, however, without the government asking for a hold.
The real question, in my mind, is whether the Cobell plaintiffs should want the Supreme Court to hear this case at all. Recall the Sherrill case, where the Court adopted an unprecedented form of laches coupled with other equitable defenses that effectively nullified the ability of the Oneida Indian Nation to restore its reservation land base through simple repurchase of the land. The lower courts in Cobell did something similar, adopting a theory of impossibility (yet another equitable defense) to reject the Cobell plaintiffs argument that the government must account for all funds.
Luckily, I think, the government opposes the cert petition. And when the federal government opposes a tribal cert petition, they’re almost always denied. In fact, the last time the Supreme Court granted a cert petition brought by tribal interests against the United States (where the government did not consent to the grant) was 1971 (Affiliated Ute Citizens v. United States; interestingly a somewhat similar case….).
So if the Court either grants or denies, how does that affect the Congressional approval of the settlement?
Here is the coverage from Indianz, and the briefs from SCOTUSblog’s Petitions to Watch:
Supreme Court Rules that Two-Member NLRB Has No Authority
What a case! Hundreds of NLRB decisions are up in the air (of course, none of them are Indian-related). Here is the opinion in New Process Steel v. NLRB, a 5-4 decision.
Supreme Court Upholds Criminal Restitution in Dolan v. U.S.
Here is the opinion, issued today (5-4).
The petitioner is a member of the Mescalero Apache Tribe.
Prior postings with briefs here.
Indian Smokeshop Cert Petition Filed in Challenge to Tobacco MSA
The case is Maybee v. Idaho: Maybee Cert Petition
Lower court materials here.
Question presented:
In 1998, the Attorneys General of 46 states, five U.S. territories and the District of Columbia (the “Settling States”) settled various legal actions involving antitrust, product liability and consumer protection claims against the nation’s four largest tobacco companies. In exchange for substantial sums of monies, tied in part to sales volume, to be paid by settling manufacturers, each Settling State agreed to enact and diligently enforce a qualifying escrow statute that would artificially inflate costs for other tobacco manufacturers and which “effectively and fully neutralizes the cost disadvantage that the Participating Manufacturers experience vis-a-vis Non-Participating Manufacturers.” The question presented to the Court is whether a Settling State may prohibit the sale of certain brands of cigarettes manufactured by tobacco companies that have never been sued, or otherwise alleged or found culpable for conduct giving rise to liability.
Metakatla Indian Community v. Sebelius Cert Petition
Here: Metlakatla Indian Community Cert Petition
Questions presented:
1. Did the Federal Circuit err when it ruled that the limitations period in Section 605(a) of the Contract Disputes Act (CDA) is not jurisdictional, but then also held that the timely filing of a claim and exhaustion under Section 605(a) is a jurisdictional requirement that has to be met before class action tolling may apply to that very same limitations period?
2. Did the Federal Circuit err in holding that a potential class member must take action to establish class action court jurisdiction over that potential class member’s claim in order for that same class member to obtain the benefit of class action limitations tolling?
This looks like a companion case to Arctic Slope v. Sebelius.
How Appealing: Sixth Circuit Most Reversed Circuit
From How Appealing:
“6th Circuit Takes Lead As Most Reversed Appeals Court”: Today in The Daily Journal of California, Lawrence Hurley has an article that begins, “The San Francisco-based 9th U.S. Circuit Court of Appeals, often categorized as too liberal and out of sync with the more conservative U.S. Supreme Court, faces some unusual competition this term for its crown as the most reversed circuit.”
Turtle Talk 
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