Supreme Court

Rosenberg v. Hualapai Indian Nation Cert Petition

Matthew L.M. Fletcher1 Comment

Here is the cert petition in Rosenberg v. Hualapai Indian Nation (No. 09-742): Rosenberg Cert Petition.

No chance for a grant here. No circuit split. Nothing important for the SCT to decide, especially since they denied cert in the dram shop cases earlier this year. And the petition merely asks the Court to reverse itself, without really stating why. Oh, and the plaintiff had recourse to tribal court, so there isn’t a “no forum” problem.

Lower court materials are here.

The questions presented:

1. Does the sovereign immunity of an Indian tribe extend to off-Indian County (extra-territorial), tortuous conduct?

a. Does Congress, and Congress alone, have the authority to establish the boundaries of tribal sovereign immunity, a judicially-created doctrine, or may this Court define its outer boundaries, as this Court has suggested in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751, 118 S.Ct. 1700 (1998)?

b. Is tribal sovereign immunity broader than the immunity provided to foreign sovereign nations?

2. Does a tribe waive its sovereign immunity by engaging in conduct that would lead a reasonable person to believe that he or she might have recourse in a court of competent jurisdiction for the negligence acts of the tribe?

Cobell Plaintiffs File Cert Petition

Matthew L.M. Fletcher1 Comment

From BLT (miigwetch to A.K.) (cert petition, with appendices, is here):

The lawyers in the long-running Indian trust litigation in Washington find themselves in an odd position: filing a petition for certiorari just two weeks after the sides announced a $1.41 billion settlement to end the case.

This week, lawyers for lead plaintiff Elouise Cobell filed their petition with the U.S. Supreme Court to challenge a ruling in July in the U.S. Court of Appeals for the D.C. Circuit. The settlement is not final and so the lawyers are keeping open their options.

The appeals court ruling erased a $455.6 million award—restitution for the government’s breach of trust in managing billions of dollars flowing from natural resources tied to Indian lands. The court also dismissed a finding that an historical accounting of individual Indian trust accounts is impossible. A three-judge panel said the government has no obligation to conduct a complete historical accounting—just “the best accounting possible” with whatever money Congress decides to appropriate.

“As a result of that holding, the government is responsible only for whatever accounting it chooses to pay for, and Indian beneficiaries will never know what happened to billions of dollars of their assets that the United States purportedly held in trust for them subject to the most exacting fiduciary standards,” Cobell’s lawyers, including D.C. solo practitioner Dennis Gingold and a Kilpatrick Stockton team, said in their petition for certiorari. “The court of appeals’ holding turns traditional, controlling trust law on its head, and is akin to giving the fox sole discretion to determine the security features of the henhouse.”

Cobell’s lawyers, who include Kilpatrick Stockton partner Keith Harper, said in a footnote on the first page of their petition that the plaintiffs and the government executed a settlement Dec. 7 that is contingent on legislation that authorizes payment and, in addition, final approval from the presiding trial court judge.

Continue reading →

Filings in Michigan Asian Carp Suit

Matthew L.M. Fletcher

From SCOTUSBlog:

In a new phase of the decades-long feud over the environmental health of the Great Lakes, Michigan has sued Illinois directly in the Supreme Court, this time over Michigan’s worries about the invasion of a fish species threatening to local fish populations.  As an Original lawsuit, the case will be tried directly in the Supreme Court, if the Justices agree to let Michigan file its complaint.  (News articles describing the lawsuit are linked in the blog’s Tuesday Roundup, see below.)

Here is the question presented in the lawsuit:  “Whether, because of changed circumstances, the Court should reopen Nos. 1, 2, and 3, Original, to consider Michigan’s request for a Sujpplemental Decree to address a new and substantial infringement of Michigan’s rights — the threatened invasion of the Gr;eat Lakes by injurious fish species — resulting from the Lake Michigan diversion project created and as now maintained by Illinois, the [Metropolitan Water Recalamation District of Greater Chicago] District, and the {U.S. Army} Corps {of Engineers] that is the subject of this case.”

A fact sheet describing the background of the new fish controversy ishere. A news release from the Michigan attorney general’s office is here.  The text of a motion for a preliminary injunction is here The lawsuit itself — technically, a motion to reopen a 1980 Supreme Court decree and to issue a new ruling on the fish mgiration question – can be found here. A 142-page appendix is here.

News Coverage of Michigan v. Illinois/US in Asian Carp Suit

Matthew L.M. Fletcher

One question might be … why wait until the Supreme Court goes into its holiday recess?

From the Detroit News:

Detroit — Michigan Attorney General Mike Cox is calling on the U.S. Supreme Court to flex its muscle in the fight to keep invasive Asian carp from Lake Michigan. In a press conference this morning, Cox announced his intention to sue the State of Illinois, the U.S. Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force them to close off waterways leading to the lake.

His move comes just weeks after authorities poisoned a section of the Chicago Sanitary and Shipping Canal to halt the spread of the carp, which are considered a major threat to the ecosystem of Lake Michigan. That project produced one Asian carp above an electrical barrier designed to keep the fish out of Lake Michigan.

“With the finding of (Asian carp) DNA within 6 miles of Lake Michigan recently … quite simply, now is the time,” Cox said. “These agencies have not acted quickly enough.”

Cox is calling for:

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Oglala Sioux Tribe Amicus Brief in Wolfchild/Zephier Case

Matthew L.M. Fletcher

Here is that brief, drafted by the legendary Mario Gonzales — Oglala Sioux Tribe Amicus Brief

Cert Petition in In re Shinnecock Smokeshop

Matthew L.M. Fletcher

So much Shinnecock news lately … In re Shinnecock Smokeshop Cert Petition

An excerpt:

The TTAB affirmed the EA’s refusal to register Petitioner’s marks on different grounds than that relied upon by the EA in the Final Office Action. The Federal Circuit affirmed. Petitioner showed below that his Tribe is obviously not a “Person” or “Institution,” and a refusal to register under Section 2(a) of the Trademark Act, under either ground was error. Further, Petitioner presented a documented prima faciecase of discriminatory pattern of practice of the USPTO in previously, and even presently, granting trademark registrations to non-Native Americans with similarly situated marks.

Supreme Court Denies Cert in Benally

Matthew L.M. Fletcher

The Supreme Court denied cert in Benally v. United States.

Indian Law-Related Cert Petitions under Review Today at Supreme Court

Matthew L.M. Fletcher

The Supreme Court will decide whether or not to grant cert in two Indian law-related cases, Benally v. United States (No. 09-5429), and Pyke v. Cuomo (No. 09-242). Benally may have a reasonable chance of being granted (though SCOTUSBlog does not list it as a petition to watch), if for no other reason that some amici filed briefs in support of the petition.

Zephier v. United States Cert Petition re: Mdewakanton Sioux Claims

Matthew L.M. Fletcher

Here — Zephier v United States Cert Petition

Questions presented:

1. Whether the Federal Circuit Court of Appeals erred in failing to recognize the existence of a trust corpus in property and beneficiary rights for and on behalf of the lineal descendants of the Loyal Mdewakantons, from the March 3, 1863 Act and that the existing trust corpus was intended to be implemented and enhanced by the subsequent legislation found in the Appropriations Acts of 1888, 1889, 1890 and 1980.

2. Whether the Federal Circuit Court of Appeals erred in not applying the doctrine of judicial estoppel as set forth in New Hampshire v. Maine, 532 U.S. 742 (2001) and thus allowed the United States to argue the existence of a trust and obtain a favorable result in the Eighth Circuit, Cermak v. United States, 478 F.3d 953 (8th Cir. 2007) and to argue the lack of a trust and obtain a favorable result in the Federal Circuit, Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), thereby creating a split in the Circuits.

The Wolfchild cert petition is here.

Harvest Inst. Freedmen Federation v. United States Cert Petition

Matthew L.M. Fletcher1 Comment

This has no chance of being granted, but it’s interesting anyway — Harvest Institute Freedmen Federation v United States Cert Petition.

The question presented:

The claims in this action were brought on behalf of representatives of persons formerly held in bondage by the so-called “Five Civilized” Indian Tribes, hereinafter “Freedmen.” The Freedmen were beneficiaries of the various trusts established between the Five Civilized Tribes and the United States by 1866 treaties, which were later modified by further allotments in 1902. The question presented is whether the United States Court of Appeals for the Federal Circuit erroneously affirmed dismissal under28 U.S.C. §2501 of Petitioners’ claims without addressing in any manner whatsoever Petitioners’ Repudiation Rule argument that the statute of limitations does not begin to run on claims by a trust beneficiary like Petitioners’, against a trustee, here the United States, to enforce the terms of a trust until, the trustee repudiates the trust relationship, something that to date the United States has not done.

Here are the district court materials and and the Federal Circuit decision.