Supreme Court

Why the Oneida Foreclosure Case Will Not Go to the Supreme Court

Matthew L.M. Fletcher2 Comments

Despite much speculation at Indianz, and grandstanding by Judge Cabranes and the anti-tribal parties, it seems very unlikely the Supreme Court will agree to grant a petition for cert in Oneida Indian Nation v. Madison County. To be sure, the question whether tribal sovereign immunity can prevent foreclosure actions against tribally-owned fee lands is certworthy, and there may already be a split in authority of sorts (the Second Circuit and the Mass. Supreme Judicial Court in a case involving the Aquinnah Wampanoag a few years back), but the Oneida case doesn’t seem to be the vehicle.

In short, this case is all but moot. And the Second Circuit nearly passed on the underlying question because the land in question may soon go into trust (perhaps after a few years litigation). Consider part of the early portion of the majority opinion in OIN v. Madison County:

Since this Court heard oral argument in this matter, there have been several developments that affect the practical implications of this Court’s decision on Madison and Oneida Counties. While these developments do not render moot any of the issues before this Court on appeal, we think it useful to describe them briefly.

Continue reading →

Supreme Court Asks Solicitor General for Views on Kaltag ICWA Case

Matthew L.M. Fletcher1 Comment

Interesting development, and better than a grant, I suppose, but the Supreme Court has asked the Office of Solicitor General to express the federal government’s views in the Hogan v. Kaltag Tribal Council case — also known as a CVSG. Order list here.

It is extremely likely that the Court will decide whether or not to take the case based on the brief filed by the OSG.

Other materials here.

Pechanga Disenrollments Cert Opposition

Matthew L.M. Fletcher

Here: Macarro Cert Opp

The petition is here. Lower court materials are here.

ICT Article on the Next Supreme Court Justice

Matthew L.M. Fletcher

From ICT’s Rob Capriccioiso:

WASHINGTON – Justice John Paul Stevens’ retirement from the U.S. Supreme Court has some tribal legal advocates calling for an American Indian replacement.

Stevens, who announced April 9 he would retire in late June or early July, has served on the court since 1975. A member of the court’s liberal voting bloc, he slowly grew stronger on tribal issues, including sovereignty, during his tenure, legal observers said. Still, the consensus is, he had a long way to go.

“Justice Stevens’ record on Indian issues is a mixed bag,” said Chris Stearns, a Navajo attorney for Hobbs Straus Dean & Walker and a commissioner with the Seattle Human Rights Commission. “His 35-year tenure on the court meant he was involved in some of the most significant cases in Indian law history.

“He wrote the Supreme Court’s [1979] opinion affirming the Boldt decision upholding Washington tribal fishing rights and rejecting the state of Washington’s appeal led by then-Attorney General Slade Gorton. That case remains one of the most profound recognition of the power of treaties.”

Stearns added that Stevens was “the lone voice of reason” on the court during the controversial Carcieri decision of 2009, in which he argued in favor of the Narragansett Tribe’s position.

On the other hand, Stearns noted that Stevens sometimes dissented against tribal interests in cases favoring tribes, such as Cabazon, which involved gaming, and Holyfield, which involved the Indian Child Welfare Act.

Matthew L.M. Fletcher, director of the Indigenous Law and Policy Center at Michigan State University, expanded on Stevens’ anti-tribal decisions, saying that his legacy in Indian law is “very, very bad.”

Fletcher said that Stevens was particularly tough in the area of federal Indian law preemption cases, where all tribal taxation cases fit.

“During the 1970s and through the 1980s, the tax cases were hit and miss because the court was unsure how to handle them. But in 1989’s Cotton Petroleum case (authored by Stevens), the court placed the advantage squarely with the states and local governments. From then on, the court only took cases far out of step with its settled understanding. …”

Fletcher also believes Stevens would “have eviscerated tribal sovereign immunity long ago,” since he often has argued against any form of immunity, tribal, federal and state, for decades, to little or no avail.
Continue reading →

SCT Oral Argument Transcript in Dolan v. United States

Matthew L.M. Fletcher

Here.

The briefs are here.

Hogan v. Kaltag Tribal Council — A Petition to Watch — Corrected

Matthew L.M. Fletcher1 Comment

From SCOTUSBlog:

Title: Hogan v. Kaltag Tribal Council
Docket: 09-960
Issue: Whether the hundreds of Indian tribes throughout the State of Alaska have authority to initiate and adjudicate child custody proceedings involving a [member] and then to compel the State to give full faith and credit to the decrees entered in those proceedings.

Continue reading →

News Coverage of Wolfchild Cert Petition Denial

Matthew L.M. Fletcher

From the Minneapolis Star-Tribune via Pechanga:

WASHINGTON – A bitter legal battle ended in defeat for some of the nation’s poorest Indians on Monday when the U.S. Supreme Court declined to hear their case for sharing the gambling wealth from the Mystic Lake and Treasure Island casinos near the Twin Cities.

The group, led by former Lower Sioux Community Chairman Sheldon Wolfchild, had petitioned the Supreme Court to review a federal appeals ruling that went against them last year.

Although some claims remain, the Supreme Court’s decision leaves intact a ruling that struck at the heart of Wolfchild’s case alleging that the federal government breached a 19th-century trust with the legitimate heirs of the Indian lands at Prior Lake and Prairie Island, where the casinos are located.

“It’s a grave injustice for the real Mdewakanton of Minnesota,” Wolfchild said.

Members of the tight-knit Shakopee Mdewakanton Sioux (Dakota) Community, which runs Mystic Lake as part of a lucrative casino complex near Shakopee, have decried the lawsuit as a groundless money grab.

“This should be the end of a misguided effort to attack the three federally recognized Mdewakanton tribal governments in Minnesota,” said Shakopee Tribal Chairman Stanley Crooks, a distant relative of Wolfchild.

The case, which dates to 2003, is based on historical claims made by descendants of Mdewakanton Indians credited with helping white settlers during the 1862 Dakota rebellion in Minnesota.

Numbering more than 20,000 in the United States and Canada, the descendants laid claim to the proceeds of the lands that form part of the present-day Mystic Lake and Treasure Island casinos.

Some of those descendants, such as Wolfchild, hail from the Lower Sioux Community near Morton, Minn., site of the less profitable Jackpot Junction Casino.

Although many of Wolfchild’s backers across the nation had their eyes on the riches of the casinos near the Twin Cities, their suit sought damages from the U.S. government, not the Shakopee and Prairie Island tribal governments, which were set up in 1980.

Continue reading →

Oral Argument Tuesday in Supreme Court Criminal Restitution Case Involving Mescalero Apache Indian

Matthew L.M. Fletcher2 Comments

Here are the briefs from the ABA website:

Merit briefs

Amicus briefs

Supreme Court Grants Cert in United States v. Tohono O’odham Nation

Matthew L.M. Fletcher1 Comment

This morning, the Supreme Court agreed to decide United States v. Tohono O’odham Nation (No. 09-846). The Court denied cert. in the Wolfchild/Zephier petitions. Here is the order list.

Here are the questions presented in Tohono O’odham (and the petition):

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.

Two Indian Law Cases are “Petitions to Watch”

Matthew L.M. Fletcher1 Comment

Keep an eye out for Monday’s announcement of new orders in pending petitions, and expect at least one Indian law case to be granted. My money’s on the Tohono O’odham case.

From SCOTUS Blog:

Title: United States v. Tohono O’odham Nation
Docket: 09-846
Issue: Whether 28 U.S.C. § 1500 — which precludes jurisdiction by the Court of Federal Claims (CFC) 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” – 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.

Title: Wolfchild v. United States; Zephier v. United States
Docket: 09-579; 09-580
Issues: (1) Whether federal court subject matter jurisdiction exists over Native American beneficiary claims of purported federal government violations of the 1934 Indian Reorganization Act or other applicable federal statutes when post-1934 IRA non-tribal community governments are involved; (2) whether the Federal Circuit’s holding of “statutory use restrictions” in congressional appropriation acts establishing statutory obligations on the United States, but no “trust,” departs from applicable statutory interpretation and trust principles; and (3) whether the Federal Circuit’s holding that a 1980 Congressional Act terminated a trust was impermissible given that the court failed to consider the 1934 IRA’s extension of all Native American trusts under 25 U.S.C. § 462 and failed to apply the “clear and unambiguous requirement” for a trust termination act.