Supreme Court

Wolfchild v. United States Cert Petition

Matthew L.M. Fletcher1 Comment

Here — Wolfchild Cert Petition

Questions presented:

1. After Carcieri, whether federal court subject matter jurisdiction exists over Native American beneficiary claims of purported federal government violations of the 1934 IRA 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 set forth in United States v. Mitchell, 463 U.S. 206 (1983) and its progeny.

3. Whether the Federal Circuit’s holding that a 1980 Congressional Act terminated a trust impermissibly conflicts with the First Circuit’s decision in Passamaquoddy Tribe v. Morton, 528 F.2d 370 (1st Cir. 1979) in that the Federal Circuit 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.

Earlier posts on this case here, here, and here.

Supreme Court Denies Cert in Harjo and Elliott

Matthew L.M. Fletcher

The order list is here, with the Harjo and Elliott cases listed on page 3.

Neither decision is a big surprise, as the Court grants cert in only a small percentage of cert petitions. The trademark suit against the Redskins will continue through different plaintiffs, but the laches argument that served to defeat the Harjo plaintiffs applies with virtually equal force to the new plaintiffs. (AP article here).

The Elliott case is a welcome relief, given that the Court seems to grant cert petitions filed by non-Indians against tribal jurisdiction almost randomly. Here, one suspects the fact that the Ninth Circuit merely was remanding to tribal court for a decision on the merits may have some importance, but the Court has previously granted cert in cases prior to a tribal court decision on the merits (see Strate). The takeaway from the Elliott cert petition denial is simply that one must continue to assume the Court continues to look at tribal jurisdiction cases carefully, but makes its certiorari decisions based on some utterly random calculus.

We surely would love to know if Justice Sotomayor weighed in on these cases in any way, and if so, how.

SCOTUSBlog Lists Harjo as a Petition to Watch

Matthew L.M. Fletcher1 Comment

From SCOTUSblog:

Docket: 09-326
Title: Harjo v. Pro-Football, Inc.
Issue: Whether the doctrine of laches is applicable to a cancellation petition filed pursuant to Section 1064(3) of the Lanham Act.

Supreme Court Indian Law Petitions Set for This Week’s Conference

Matthew L.M. Fletcher

Two important cert petitions, Elliott v. White Mountain Apache Tribal Court (09-187) and Harjo v. Pro-Football, Inc. (09-326) are set for this Friday’s Conference.

Our sense is that the Court will decline to hear either case, and there’s no word from SCOTUSBlog on these petitions yet. However, the Court’s interest is always heightened when a tribal court asserts jurisdiction over a non-Indian, as is the case in the Elliott case. And there appears to be a circuit split (on trademark grounds) in the Harjo case, with one side of the split supposedly involving an opinion from then-Third Circuit judge Alito. So there is a possibility in each case.

Here are the materials in Elliott:

Docket Sheet

Petition for Cert

Brief in Opposition

And here are the materials in Harjo:

Continue reading →

Bill Rice on the Carcieri Fix in ICT

Matthew L.M. Fletcher

from ICT:

Recent newspaper reports suggest that there is concern in Rhode Island, and perhaps elsewhere, that aCarcieri fix to the Indian Reorganization Act of 1934 will allow tribes to acquire trust land wherever they choose, resulting in tribes building Indian casinos willy-nilly outside their reservations and without appropriate input from the state. These reports appear designed to create unjustified fears of an Indian gaming boogey man hiding in a closet of the Carcieri fix.

In February, the Supreme Court interpreted the IRA as granting the secretary of the Interior authority to acquire land only for tribes under federal supervision when the IRA was enacted in 1934 – thereby creating “second class” tribes of those brought under federal authority after 1934.

As a result of this litigation, a development meant to provide homes for tribal members has sat uncompleted and deteriorating for many years. The Carcieri fix would simply put all federally recognized tribes on equal footing, creating an even playing field in matters of land acquisition. This would, in turn, allow the secretary of the Interior to acquire land from willing sellers to meet the needs of Indian tribes and their people. All peoples are entitled to peacefully acquire lands for homes, sustenance, and to pursue their social, cultural and economic development. Indian peoples are not excepted from this rule.

Continue reading →

Rep. Kennedy Predicts Carcieri Fix Could Pass Congress This Year

Matthew L.M. Fletcher

From How Appealing:

“Kennedy predicts ‘Carcieri fix’ bill might pass”: Today’s edition of The Providence (R.I.) Journal contains an article that begins, “Rep. Patrick J. Kennedy said Thursday that a bill to reverse a U.S. Supreme Court decision blocking special land status for the Narragansett Indian tribe could become law during this Congress.”

From ProJo:

WASHINGTON — Rep. Patrick J. Kennedy said Thursday that a bill to reverse a U.S. Supreme Court decision blocking special land status for the Narragansett Indian tribe could become law during this Congress.

Democrat Kennedy also declared his support for such legislation — the only member of Rhode Island’s congressional delegation to do so.

Enactment of the legislation — which may have implications for tribes across the country — is “likely to happen” if supporters of the measure are able to attach it to a major piece of legislation that is certain to pass both houses of Congress, Kennedy said.

Continue reading →

Supreme Court Grant that May Interest Indian Law Observers

Matthew L.M. Fletcher

The Supreme Court granted cert in New Process Steel v. NLRB to decide whether the NLRB is authorized to act when only two of its five positions are filled. Indian law observers may recall when Peter Schaumber spoke at the FBA Indian Law Conference a few years back, he revealed that he was only one of two members of the Board, and that their practice was to decide cases unanimously — or not at all. Presumably, the New Process Steel case will determine if any of the Board’s decisions in the last several years are valid.

Here are the petition stage briefs (from SCOTUSblog):

Docket: 08-1457
Title: New Process Steel v. National Labor Relations Board…
Issue: Whether Section 3(b) of the National Labor Relations Act, 29 U.S.C. § 153(b), authorizes the NLRB to act when only two of its five positions are filled, if the Board has previously delegated its full powers to a three-member group of the Board that includes the two remaining members; does the NLRB have authority to decide cases with only two sitting members, where 29 U.S.C. § 153(b) provides that “three members of the Board shall, at all times, constitute a quorum of the Board”?

For 08-1457:

Shinnecock Member Asks Supreme Court to Overturn Cherokee Nation v. Georgia

Matthew L.M. Fletcher

Here is the cert petition in Smith v. Shulman, a tax case — Smith v Shulman Cert Petition

Questions presented:

I. Whether a “rebate” to a reservation Indian is income?

II. Whether a District Court is barred by statute from exercising subject matter jurisdiction, when an Indian treaty provides a free trade right and a procedural dispute resolution right?

III. Whether this Court should overturn The Cherokee Nation v. The State of Georgia, 30 U.S. 1 (1831)insofar as the case provides the legal underpinning of United States’ jurisdiction over Indian reservations, where this Court interpreted the Commerce Clause language of “with” to mean “over” and found Indian tribes to be “domestic dependent nations” rather than “foreign nations,” an error in Constitutional interpretation and a historical wrong against Native Americans?

Law Professor Amicus Brief Supporting Harjo Cert Petition

Matthew L.M. Fletcher

Here — Law Professor Amicus Brief

The cert petition is here, and the rest of the amicus briefs and materials are here.

Cert Petition in Roy v. Minnesota — Is There a Treaty Right to Possess Firearms?

Matthew L.M. Fletcher

Interesting arguments in this one — Roy v Minnesota Cert Petition

Questions presented (check out no. 5 — a treaty right to possess firearms?):

1. DOES THE STATE OF MINNESOTA LACK SUBJECT-MATTER JURISDICTION OVER THE PRESENT CONTROVERSY BECAUSE POSSESSION OF FIREARMS IS “CIVIL-REGULATORY” IN THIS PARTICULAR CASE?

2. DOES THE PETITIONER HAVE A RIGHT TO POSSESS FIREARMS THAT IS PROTECTED AS A RESERVED RIGHT IN THE 1854 AND 1855 TREATIES WITH THE CHIPPEWA?

3. DID THE MINNESOTA APPELLATE COURT IMPROPERTLY DENY REVIEWOF THIS MATTER BECAUSE THE MINNESOTA COURT OF APPEALS FAILED TO ADDRESS OR REVIEW THE RELEVANT AND APPLICABLE 1854 AND 1855 TRIATIES WITH THE CHIPPEWA?

4. DO PETITIONER’S TREATY RIGHTS BELONG TO HIM AS AN INDIVIDUAL TRIBAL AS WELL AS A TRIBAL AND BAND MEMBER OF THE MINNESOTA CHIPPEWA TRIBE, AS WELL AS COLLECTIVELY TO THE BANDS THAT ARE SIGNATORY TO THE TREATIES OF 1854 AND 1855?

5. DOES THE PETITIONER HAVE A TREATY RIGHT TO POSSESS FIREARMS AS A PRE-EXISTING RIGHT IN LIGHT OF THIS COURT’S 2008 DECISION IN UNITED STATES V. HELLER (2008 WL 2520816)?