Supreme Court

The Solicitor General and Indian Law

Matthew L.M. Fletcher1 Comment

The Senate just confirmed the nomination of Harvard Dean Elena Kagan as U.S. Solicitor General. The Solicitor’s Office, home the of the so-called “Tenth Justice,” has a great deal to say about Indian law. In particular, in Indian law cases not directly involving the United States as a party, the Solicitor General will often file an amicus brief on the merits, and the Court often invites the Solicitor to opine on whether or not to accept an Indian law cert petition. The SG’s recent briefs are here.

During the eight years of the Bush Administration, the U.S. Solicitor General’s Office filed 10 invitation and amicus briefs, covering 8 total cases. Of the 10 briefs, five supported tribal interests strongly, with another two partially supporting tribal interests. Interestingly, of the five strongly pro-tribal positions taken by the SG, the Supreme Court only agreed with the SG’s position once. The Court agreed to deny the cert petition filed by Teck Camino Metals in the 2007 Term in accordance with the SG’s position, but rejected the SG’s positions in Plains Commerce Bank, Wagnon, and Sherrill (twice — one on the merits and one at the petition stage).

This result is fairly remarkable, and worth more study. I wonder if the SG’s views have so little weight with the SCT in any other area of law, and if these outcomes are part of a longer trend in Federal Indian Law.

Here is the quick survey of the Solicitor’s amicus briefs and invitations, the position taken, and the impact of the brief during the Bush Administration:

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Results of Second Turtle Talk Poll: Worcester v. Georgia Most Important Indian Law Precedent

Matthew L.M. Fletcher1 Comment

Here are the results of our second poll — what is the most important Federal Indian Law Supreme Court opinion?

  1. Worcester v. Georgia — 32 percent
  2. Montana v. United States — 18 percent
  3. Oliphant v. Suquamish Indian Tribe — 11 percent
  4. Johnson v. M’Intosh — 8 percent
  5. Carcieri v. Salazar — 7 percent
  6. Santa Clara Pueblo v. Martinez — 6 percent
  7. California v. Cabazon Band — 6 percent
  8. Sherrill v. Oneida Indian Nation — 5 percent
  9. Lone Wolf v. Hitchcock — 2 percent

No other case received more than 1 percent of the vote.

Personally, I would have voted for Santa Clara Pueblo v. Martinez. Tribal sovereign immunity, power to tribal courts to decide internal disputes, membership criteria to be decided by the tribes.

Second Turtle Talk Poll: The Most Important Supreme Court Opinions in Indian Law

Matthew L.M. Fletcher6 Comments

Ok, here’s poll number 2! We’ll release results Friday.

What is the most important Supreme Court opinion in Federal Indian Law?

Seneca v. United South and Eastern Tribes Cert Petition

Matthew L.M. Fletcher1 Comment

Is here — seneca-cert-petition

Lower court materials are here.

Question presented:

Whether the Court of Appeals impermissibly expanded the intent of the Indian Self-Determination Act by applying a “liberal” standard to bring within its scope libelous conduct directed by tribal officials against a federal agency official?

Cert Opposition in Catskills Litigation Trust v. Harrah’s

Matthew L.M. Fletcher

Here is the cert opp from Harrah’s — harrahs-cert-opp

Here is the cert petition.

Cert Opposition in Coushatta v. Meyer and Assoc.

Matthew L.M. Fletcher

Here is the cert opp — meyer-assoc-cert-opp

The cert petition is here.

Comments on the Wolfchild Case

Matthew L.M. Fletcher12 Comments

There’s no reason to take a position on the Federal Circuit’s decision reversing the trial court in the Wolfchild case, but there are several big-picture issues that may have affected the Circuit’s decision or otherwise demonstrate that something is horribly wrong in federal Indian law.

First, the lawyer’s history propounded by the trial court, the Federal Circuit, and necessarily the parties is troubling. Let us not forget, as it would be very easy to do from the Federal Circuit’s opinion, that this whole thing started with the violent and illegal acts of the United States government. It was the United States’ actions that precipitated the so-called “rebellion” of the Dakota people near Fort Snelling. And it was the local non-Indian populace, the Army, and President Lincoln that characterized the “rebellion” as a series of “massacres.” The people called the “Loyal Mdewakanton” and the people, predominantly plaintiffs, that were not so “loyal” were all part of this community utterly ravaged by the United States. The end of this war in 1862 resulted in the largest mass execution of anyone in American history — about 40 men and boys, all Dakota. And the majority of Dakota people in the area were rounded up and sent on a death march that included at least three or four states, killing many, many people.

None of that is relevant to this case, apparently. But it really should be.

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“Factbound and Splitless” Today at UC-Berkeley Law School

Matthew L.M. Fletcher

I’ll be presenting “Factbound and Splitless” today at UC-Berkeley Law School. Here’s a taste….

Cert Petition Success by Party -- OT 1986-1994

Supreme Court Denies Cert in Seminole Tribe v. Florida House of Representatives

Matthew L.M. Fletcher

Here is the Court’s order list for today. Seminole’s bad news is on page 3.

This was to be expected, though at some point the Court will grant cert on an Indian Gaming Regulatory Act case, if enough state supreme courts come through with strange opinions. It might be awhile….

Carcieri Fix Might Not Be So Easy

Matthew L.M. Fletcher1 Comment

I couldn’t really do it in 800 words, but my ICT editorial necessarily left out several points I still want to make about Carcieri and its impact. Here is the first. Others will follow.

The Carcieri fix will not be an easy sell. Tribal interests have relatively recently “fixed” a Supreme Court decision by asking Congress for help — the so-called Duro fix. But consider how many other “fixes” never got off the ground: (1) Oliphant Fix (numerous incarnations); (2) Seminole Tribe Fix; and (3) Hicks Fix.

Why did the Duro Fix get through while the others did not? First, the only constituency that would have opposed the Duro Fix was nonmember Indians, the most famous (later on) being Russell Means, who traveled from city to city arguing against tribal criminal jurisdiction over nonmember Indians after he got arrested at Navajo. Second, state and local governments had some general interest in limiting tribal criminal jurisdiction (the same as they do with jurisdiction over non-Indians) but the interest is just that — general. And a bit disingenous in a lot of places in the country.

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