Supreme Court

Hogan v. Kaltag Cert Petition News

Matthew L.M. Fletcher1 Comment

From Indianz. The comments of Sen. Bill Wielechowsk read like a cert pool memo (and agreeably so):

“The facts in Kaltag are this,” said Sen. Bill Wielechowski (D), The Anchorage Daily News reported. “You had a Mom who was convicted of murder and was a drinker. You had a Dad who wanted nothing to do with the child. You had the Kaltag tribe that took custody of the child, adopted her to residents who lived in Huslia. All participants consented to the tribal court doing this, all were Native, no one raised any concerns about the due process provided by the tribal court. The child is 10 years old, happy and healthy with the family, and the state comes in and wants to stop this.”

Petitioner’s Brief in Dolan v. U.S. — Criminal Case Involving Mescalero Apache Indian in Supreme Court

Matthew L.M. Fletcher

From the ABA Supreme Court merits briefs website:

Merit briefs

Amicus briefs

Briones v. U.S. Cert Petition

Matthew L.M. Fletcher

This involves crimes committed on and around the Gila River Indian Community, prosecuted under the Major Crimes Act. Here is the petition: Briones v US Cert Petition.

It looks like a pair of interesting questions. There may be a decent shot for review if the petition’s representations are correct.

Questions presented:

1. Whether the District Court and the Circuit Court erred in admitting the out-of-court statements of Arlo Eschief to the jury by the prosecution through testimony of a law enforcement agent constituting hearsay testimony in violation of the Sixth Amendment Confrontation Clause?

2. Whether the District Court had the jurisdiction under the General Crimes Act 18 U.S.C. § 1152 and the Major Crimes Act 18 U.S.C. § 1153, to apply federal statutes of crimes on Indian land not expressly authorized by Federal statute?

Cert Petition in Oglala Sioux Tribe v. U.S. Army Corps

Matthew L.M. Fletcher

Here: Oglala Sioux Tribe v. US Army Corps Cert Petition

Lower court materials here and here.

Questions presented:

1. Does the 5-year statute of limitations of Section 12 of the Indian Claims Commission Act of 1946 (“ICCA”), 60 Stat. 1049, 1052 (formerly codified at 25 U.S.C. § 70k (repealed)), which applies only to claims accruing no later than August 13, 1946, bar federal court jurisdiction over an Indian tribe’s claim that the Government breached its trust responsibility to consult with the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe’s cultural and historic heritage located on federal lands within the tribe’s aboriginal territory, specifically before making the transfers of federal lands authorized by the Water Resources Development Act of August 17, 1999, Pub. L. 106-53, Title VI, §§ 601-609, 113 Stat. 269 (“WRDA”), where the tribe’s breach-of-duty-to-consult claim does not involve either an historical land claim for money damages or the revision of treaties, contracts or agreements between the tribe and the United States, and where the breach occurred no earlier than 2002 when the WRDA transfers began?

2. Does an Indian tribe have standing to pursue its claim that the Government breached its trust responsibility to consult with the tribe before taking significant actions adversely affecting the preservation and protection of the numerous items and sites of the tribe’s cultural and historic heritage located on lands within the tribe’s aboriginal territory, where the merit of the tribe’s non-frivolous contention, that it has a legally protected interest in the tribe’s aboriginal territory based on the Government’s trust relationship with the Indian tribes, must be assumed in assessing the tribe’s standing to sue? Continue reading →

Supreme Court Rulings Forcing Shutdown of EPA Enforcement

Matthew L.M. Fletcher

NYTs article here.

An excerpt:

As a result, some businesses are declaring that the law no longer applies to them. And pollution rates are rising.

Companies that have spilled oil, carcinogens and dangerous bacteria into lakes, rivers and other waters are not being prosecuted, according toEnvironmental Protection Agencyregulators working on those cases, who estimate that more than 1,500 major pollution investigations have been discontinued or shelved in the last four years.

Cert Opposition in Rosenberg v. Hualapai

Matthew L.M. Fletcher

Here: Hualapai Cert Opp

Cert petition is here.

Dickson v. San Juan County Cert Petition

Matthew L.M. Fletcher

Dickson v. San Juan County Cert Petition

Lower court materials here.

Questions presented are too long for this blog to reproduce.

Continue reading →

Davis v. Minnesota Cert Petition

Matthew L.M. Fletcher3 Comments

Interesting case and petition, though I would not have described the Minnesota jurisdictional rule as “aparteid.”

Davis v. Minnesota Cert Petition

Lower court decision here.

Questions presented:

Has the State of Minnesota infringed upon the right to tribal self-government of the Minnesota Chippewa Tribe?

Is the assertion of state civil regulatory authority in this matter preempted under Public Law 280 exceptions?

Continue reading →

Smith and Baum on Labor Laws and Indian Country

Matthew L.M. Fletcher

from ICT:

There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out – if the facts set up the wrong way, irreparable damage will be done to tribal self-government in this field. This is a problem (or opportunity) for tribal sovereignty in the way that the test case ofBrown v. Board of Education was for the civil rights movement.

There’s been plenty of “bad press” about tribes “getting away with” practices in the workplace that may look wrong to outsiders. The assertion of sovereign immunity against individual employees may exacerbate tensions. In dismissing an action for unpaid wages brought by tribal employees, the Crow Court of Appeals recently warned, “If the tribe does not take steps to enact appropriate waivers of sovereign immunity, we believe it is only a question of when Congress will do it for us.” The Crow Tribe later enacted law to protect its workforce.

There’s an old adage that law professors like to use: Bad facts make bad law; in the area of tribal labor and employment law, watch out.

It’s probably more likely that the Supreme Court, not Congress, will decide whether tribes and their enterprises must succumb to federal authority over union rights, age and other discrimination laws, and a host of other federal laws governing employment relations. For now anyway, Congress is distracted by other issues. So what will a case look like that goes up to the high court?

With non-Indians taking up employment positions in Indian country in droves, federal agencies are looking for opportunities to enforce federal labor laws of general application against tribes. Tribes cannot assert the sovereign immunity defense against the United States; so these cases go forward. The question becomes whether Congress (when silent on the issue) intended such laws to apply to tribes.
Continue reading →

Asian Carp Op/Ed from GTB Chair Derek Bailey

Matthew L.M. Fletcher

From the Traverse City Record-Eagle:

Three decades ago many thought that the Great Lakes fisheries resources would be ruined by American Indian tribes exercising “treaty-fishing” rights. After the federal courts confirmed these treaty-reserved rights, the tribes demonstrated their primary concern is protection of the Great Lakes fisheries.

Ironically, these “treaty-fishing” rights now might prove crucial in protecting fisheries resources for all of Michigan’s citizens against the Asian carp invasion.

The United States Supreme Court has denied Michigan’s request for an injunction closing the shipping locks outside of Chicago to prevent any further migration of Asian carp into the Great Lakes. In the midst of the competing claims debating the economic losses of closing shipping to the Mississippi River system compared to potential harm to Great Lakes fisheries, all parties — Attorney General Cox, Gov. Granholm, the Army Corps of Engineers and other federal agencies — agree that the damage to the Great Lakes fisheries will be profound.

It has been almost six years since the U.S. Fish and Wildlife Service estimated that “Asian carp could have a devastating effect on the Great Lakes ecosystem and a significant impact on the $7 billion fishery.” During this time the Army Corps of Engineers failed to act promptly, in effect fiddling while Rome burned. To the extent the Army Corps is responsible for the impending disaster, the tribes may be better situated than the state to challenge the federal government.

Continue reading →