Here: Cobell Cert Opp.
Importantly, Supreme Court nominee Elena Kagan’s name is not on this brief. Presumably, that means she wouldn’t recuse. However, it’s all academic if Congress passes the settlement….
Supreme Court
How the Supreme Court Talks about Indian Tribes when They’re Not Looking
Just read portions of the Supreme Court’s decision in Alabama v. North Carolina, issued Tuesday.
The case involved a challenge to North Carolina’s alleged failure to comply with a compact between states in the southeast over low-level radioactive waste. One issue was whether the states challenging North Carolina could sue through a Commission they had created to enforce, monitor, and administer the compact. The Court held that it was no 11th Amendment sovereign immunity problem for the Commission, technically a nonsovereign, to bootstrap onto the claims of the other states so long as they were the same claims, relying on Arizona v. California (1983).
Justice Scalia for the majority noted that Arizona had not been overruled, and that it was no problem for the Commission to sue on the backs of other states. North Carolina had noted that Oneida County v. Oneida Indian Nation (1985) may have undermined Arizona. In rejecting that argument, Scalia dropped a footnote, noting that “in Oneida, there was no sovereign plaintiff.” That would be the Oneida Indian Nation he was referring to as a “nonsovereign.”
In dissent, Chief Justice Roberts (joined by Justice Thomas) went further, arguing that Arizona‘s holding allowing Indian tribes to piggyback onto the U.S. in claims against states was simply wrong:
Understandably, the Court’s opinion leans heavily on Arizona, which has never been squarely overruled. Ante, at —- – —-. But Arizona itself is built on sand. The relevant portion of that opinion is almost wholly unreasoned. It cites only a footnote in a prior case, the pertinent paragraph of which failed even to discuss the State’s immunity from private suit. See 460 U.S., at 614, 103 S.Ct. 1382(citing Maryland v. Louisiana, 451 U.S. 725, 745, n. 21, 101 S.Ct. 2114, 68 L.Ed.2d 576 (1981)). That paragraph addressed only intervention, not sovereign immunity, and the two issues are distinct. See South Carolina v. North Carolina, 558 U.S. —-, —-, n. 5, 130 S.Ct. 854, 864 N. 5, — L.Ed.2d —- (2010).
Most importantly, the subsequent development of our sovereign immunity jurisprudence has only undermined Arizona‘s already weak foundations. We recognized in Alden v. Maine, 527 U.S. 706, 718, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999), that the Constitution left intact the States’ pre-existing “immunity from private suits”; as the Eleventh Amendment confirms, the States did not “ ‘surrender … this immunity in the plan of the convention.’ ” Id., at 717, 119 S.Ct. 2240 (quoting The Federalist No. 81, p. 487 (C. Rossiter ed. 1961) (A.Hamilton)); see also Alden, supra, at 718-722, 755-756, 119 S.Ct. 2240. There is no reason to suppose that the States, at the founding, made an exception for private suits that happen to mimic other plaintiffs’ claims-and neither Arizona nor the Court today suggests otherwise.
United States Brief in Opposition to Cert Petition in Oglala Sioux Tribe’s Missouri River
Here: Oglala09-1051
Earlier materials are here.
Government Files Opposition to Cert Petition in Arctic Slope v. Sebelius
Here: Sebelius Cert Opp
Earlier materials are here.
ICT Article on Schaghticoke Federal Recognition Cert Petition
From ICT:
WASHINGTON – The Schaghticoke Tribal Nation has petitioned the U.S. Supreme Court to review whether a lower court should have considered the appearance of undue political influence as well as its actual effect on Interior Department officials, who rescinded the nation’s federal acknowledgment.
The 220-page petition for a writ of certiorari was filed May 24. It presents a single question to the high court: “Whether certiorari should be granted to resolve a conflict among the Courts of Appeals on this question: When reviewing a petition’s due process claim that undue political pressure has actually affected or influenced a federal administrative adjudicative decision, must a federal court also consider the petitioner’s claim that due process was violated by the appearance of bias or impropriety arising from the political pressure?”
The petition is the last judicial stop on the Schaghticoke’s long quest for federal acknowledgment – a journey that began in 1981 with a letter of intent to seek federal status with the BIA.
The nation was federally acknowledged in a Final Determination on Jan. 29, 2004, but within minutes of the BIA announcement Connecticut politicians led by Attorney General Richard Blumenthal vowed to do everything in their power to overturn the decision.
They kept their promise.
Over the next year and a half, Blumenthal, Sens. Chris Dodd and Joe Lieberman, former U.S. Reps. Nancy Johnson, Chris Shays and Rob Simmons, Connecticut Gov. Jodi Rell, state and local officials and the White House-connected lobbying firm of Barbour, Griffith and Rogers – hired by residents of Kent, Conn., where the nation has a 400-acre reservation – lobbied former Interior Secretary Gale Norton, the White House, then-Attorney General Alberto Gonzales, the Interior Board of Indian Appeals, and even a federal district court judge to overturn the nation’s federal acknowledgment.
In October 2005, the BIA issued a Reconsidered Final Determination reversing the Schaghticoke’s acknowledgment.
The nation appealed the BIA reversal to a federal district court, where Judge Peter Dorsey acknowledged the unprecedented political influence exerted on federal decision makers. But, ultimately, Dorsey threw out the case because, among other things, he believed federal officials who said they weren’t influenced by the enormous political pressure that they acknowledged was brought to bear upon them.
A panel of the 2nd Circuit Court of Appeals agreed with the district court and denied the nation an en banc hearing.
Schaghticoke attorney Richard Emanuel said the case has far-reaching implications.
“The petitioner’s principal contention is that in the context of a federal administrative adjudicative decision, a litigant’s due process right to a fair hearing may be violated by the ‘appearance of bias’ or impropriety. It is an issue that can affect any litigant in any adjudicative proceeding before any federal agency,” Emanuel wrote.
He said circuit courts are split on the issue.
The Supreme Court will need to decide if there is, indeed, a clear split and whether it’s important enough for them to take it up, said Matthew L.M. Fletcher, director of the Indigenous Law Center at Michigan State University. If it does, the court will probably decide whether the federal acknowledgment process is quasi-judicial or quasi-legislative, Fletcher said.
“It’s definitely more the former. So the real question is whether there is a circuit split. The 2nd Circuit apparently has adopted a rule that a petitioner like STN (the Schaghticoke) has to show ‘actual’ prejudice or bias in a political influence case involving a federal agency – as in, members of Congress or others with power actually influenced an agency decision. STN is arguing that in some instances a petitioner should only have to show ‘apparent’ prejudice or bias. As we all know, there is plenty of apparent political influence in this case, but STN was unable to prove actual political influence to the court,” Fletcher said.
Continue reading
Schaghticoke Tribal Nation Federal Recognition Cert Petition
Here: STNCertPetitionandAppendixMay242010
Lower court materials here.
What Indian Country Can Learn from Elena Kagan’s Senate Questionnaire
In short, not much. But she might be a little bit more knowledgeable about Indian law than I previously thought. But some signs suggest she will be hostile toward tobacco/smokeshop-related cases.
1. United States v. Tohono O’odham Nation
We already knew Kagan likely will have to recuse herself from this case, which will be argued in the October 2010 Term sometime. In her Senate questionnaire, she describes the case on page 142. Earlier this month, she addressed the judges of the Federal Circuit and described the case again (here, pages 5-6). She also mentioned, but did not discuss the Navajo Nation cases involving the Peabody Coal claims (page 7).
Interestingly, leading up to her description of the T.O.N. case, Kagan mentioned a 1906 Indian law case, United States v. Cherokee Nation, 202 U.S. 101 (1906). She noted that the first woman admitted to practice in the Supreme Court (and in the Federal claims court), Belva Lockwood, successfully argued this case on behalf of the Eastern Cherokees at the age of 75, and won over $7 million for the tribe (here, pages 4-5).
2. American Indian Empowerment Fund. She remains a member (here, page 2).
3. Native American Alumni Celebration (Oct. 2007)
An agenda is available here, pages 132-34. The agenda included “A Conversation with Dean Elena Kagan,” but unfortunately there are no notes or materials on that conversation.
4. Navajo Nation Supreme Court Oral Arguments (2006)
Press coverage of this event is here, pages 109-112. Then-Dean Kagan is quoted as saying, “In an age of global conflict we have much to learn from the Navajo peacemaking court system.” (page 111)
5. Tobacco Settlement Negotiations (1990s)
Apparently, while part of the Clinton Administration, Kagan became known as a “wonderwonk” in these negotiations (here, page 99). She also helped to draft tobacco legislation for John McCain in 1996 (here, page 103). If for some reason one or more of the various cases involving the Tobacco Master Settlement Agreement reaches the Court, a safe bet would be that she will be hostile toward any Indian or tribal immunity argument.
Tom Tomorrow on Supreme Court Nomination
Available here.
Supreme Court Denies Cert in Sharp v. United States
Here is the order list for today (the reference to Sharp is on page 10).
Fletcher on Kagan’s Minority Hiring Record
I’d like to post an edited version of my email to Rob Capriccioso on this question. The ICT article in question is here. I think his report, while excellent and fair, doesn’t highlight how we have no read way to evaluate Kagan on her minority hiring record (the portion highlighted in red is what was quoted in the article):
It’s hard to judge Elena Kagan on her work as the shepherd of the Oneida Chair at Harvard, or as a dean that hired a single minority person during an unprecedented hiring spree at Harvard during her tenure, but the White House’s response to the criticism is so weak and misdirected that it might require additional consideration. The allegations are that Kagan, as dean, hired only 1 person of color (and I think it was 5-7 women) at a time when the Harvard faculty hired over 30 new faculty members. The WH’s weak response was that we don’t know how many offers she made to minority candidates, and that she did offer many visiting positions to people of color. Both are virtual non sequitirs.The Oneida Chair, created in 2003, required Harvard to hire a full-time, tenured faculty member dedicated to Indian law. That still hasn’t happened * * *. In short, Harvard has not found a permanent Oneida Chair to its liking. That is a bitter shame, since numerous American Indian law profs are objectively qualified to be tenured at Harvard. * * *Generally, deans are figureheads in law school hiring processes that don’t have a lot of say on faculty hires. They might attempt to guide a faculty hiring committee in a certain direction, but their main job in the hiring season is to negotiate a contract with someone the faculty has already agreed to hire. So it is a little unfair to judge Kagan for failing to hire minorities in general, and specifically a full-time Oneida chair. But one could make a sensible claim that Harvard simply is playing dirty pool with the Oneida Chair. * * * And the deans generally do have control over which outside law profs are offered visits. This is troubling to say the least, though to be fair, few of the top law schools in the United States hire minority candidates in any given year.I find it disconcerting that Harvard has failed to hire a permanent Oneida chair after most of a decade, especially after being granted free money to do so (I think the Oneida Indian Nation under Ray Halbritter donated $3 million). * * * But how much of the blame goes to then-Dean Kagan? Again, that’s tough. * * *
Thanks to R.C. for raising the point to me in an email that then-Dean Kagan could be utterly blameless for Harvard’s inaction on minority hires (or not, we simply don’t know).
Turtle Talk 
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