Here is the order. The Friday listing is on page 7. And the mercury case (Utility Air Regulatory v. New Jersey) is on page 4.
Supreme Court
NYTs Editorial Supporting Navajos
From the NYTs:
The federal government has a long history of cheating American Indians, and not all of this dirty dealing is in the distant past. On Monday, the Supreme Court hears arguments in a suit by the Navajo, who lost millions of dollars’ worth of coal royalties because the government helped a coal company underpay for their coal. A lower court ruled for the Navajo Nation. The Supreme Court should affirm that well-reasoned decision.
The Navajo’s huge reservation spreads across parts of Arizona, New Mexico and Utah. The United States holds the lands in trust and manages their large coal deposits. Peabody Coal had a lease to mine on that land. The terms provided that in 1984, the interior secretary could make a reasonable adjustment in the royalty rates paid to the tribe.
SCOTUSBlog: Argument Preview in Hawaii v. Office of Hawaiian Affairs
From SCOTUSBlog:
An excerpt:
Central to the issues in this case are statutes passed in 1993 by both the Hawaii State Legislature and the U.S. Congress recognizing the 100th anniversary of the monarchy’s overthrow. On the state level, three related statutes recounted the story of the monarchy’s overthrow and annexation of Hawaii, acknowledged that neither Native Hawaiians or their government had consented to the cessation of land, declared the U.S.’s actions “illegal and immoral,” and resolved to support efforts by Native Hawaiians to vindicate their rights and to establish their own sovereign government. Congress subsequently issued an Apology Resolution that described the monarchy’s overthrow and apologized to Native Hawaiians. And in 1997, the Hawaii Legislature passed another statute clarifying the proper management of lands held in trust for the benefit of Native Hawaiians and embracing the facts laid out in the federal Apology Resolution.
Andrew Cohen’s CourtWatch and “Factbound and Splitless”
From CBS News (download the paper here) (How Appealing and Indianz):
Bury My Chance at Supreme Court
Andrew Cohen: Study Shows Indian Tribes Face Long Odds In “Cert Pool” Process at High Court
This coming Monday, the United States Supreme Court will hear oral argument in a case involving the coal royalty rights of the Navajo Nation. It will be the second time the Justices have involved themselves in the dispute. The first time, in 2003, the Court sided with the government, that is to say the Interior Department, which at the request of an energy corporation had blocked a royalty increase to the Nation.
The case was then sent back down to the Federal Circuit Court for a new look. In 2007, that lower appeals court again sided with the Navajo people, ruling that the government had breached its fiduciary duty to the Nation. The Bush Administration again appealed, arguing that a ruling in favor of the tribe would “encourage the filing” of other claims against the Interior Department. And, last fall, the Supreme Court yet again expressed through its certiorari process (the means by which the Court typically agrees to accept certain cases and reject others) a willingness to step in and save the feds in their fight against the tribe.
While the merits of the case are complex, it is a virtual certainty that the Court’s majority will once again reject the claims of the Navajos. That alone might be cause for some serious discussion about the relationship between the Court and American Indians. But thanks to an important study by Michigan State University Law Professor Matthew L.M. Fletcher we now know that there may be a problem that goes way beyond this single case.
Fletcher’s trenchant study, entitled “Factbound and Splitless,” concludes that the “Supreme Court’s certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically,” he writes, “there is a zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty.” A 25 percent acceptance rate for any category of cert petitions is remarkably high in any circumstance-especially when compared with the number of, say, death penalty appeals that are accepted each term.
Continue reading
Friday v. U.S. Cert Petition — Not a “Petition to Watch” — Commentary
Tomorrow the Supreme Court likely will deny cert in the Friday v. United States petition. SCOTUSblog does not pick it as a “petition to watch”, which means something. There was a moment when the Supreme Court might have heard this case (and maybe not in a good way, since the United States would be the petitioner then), but the Tenth Circuit joined the Ninth Circuit in upholding the constitutionality of the Bald Eagle Protection Act.
The ironic, even ridiculous, result of these cases is that it is easier for non-Indians to take advantage of the American Indian religious exemptions than it is for Indians. Yesterday, Indianz reported on one such case favoring non-Indians. Here is the argument:
Samuel Wilgus Jr and Raymond Hardman were convicted of possessing feathers without a federal permit. But since they are not enrolled in a federally recognized tribe, they wouldn’t have been able to obtain one. The scheme violates the Religious Freedom Restoration Act, Judge Dee Benson ruled. The men say they are practitioners of Native American religions. (emphasis added) [Here is the opinion — Wilgus Order]
So, what this means is that the very existence of a regulatory/statutory mechanism for Indians to acquire eagle parts under the Protection Act through the National Eagle Repository — a mechanism that is incontrovertibly useless, a fact that Indian people could conceivably prove (but apparently not a “constitutional fact”) — means that the statute does not violate the Religious Freedom Restoration Act. But for non-Indians, who can never take advantage of the Repository (and, perhaps, Indian religions), it is a constitutional violation.
I’ve convinced myself. It is ridiculous.
Amar and Brownstein on the Navajo Nation v. USFS Case
Wow! This may be the first time anyone on Findlaw has written anything substantive on Indian law. This might actually contribute to raising the profile of the case a bit for the SCT.
From Findlaw (via How Appealing and Con Law Prof Blog):
By VIKRAM DAVID AMAR AND ALAN BROWNSTEIN
The U.S. Supreme Court will decide in the coming weeks whether to take up an important and interesting case from the U.S Court of Appeals for the Ninth Circuit involving religious liberties and the seminal federal statute – the Religious Freedom Restoration Act (RFRA) – designed to safeguard them. In this column, we will discuss the issues the case raises; the reasons why the Ninth Circuit’s resolution of these issues, while understandable, might not do justice to the complex and competing interests involved; and the problems that both the Supreme Court and lower courts face when trying to implement this well-meaning but imperfectly-drafted Congressional statute.
Tribal Supreme Court Project Amicus Brief Supporting Snowbowl Cert Petition
Here it is — navajo-cert-petn-amicus-brief
Here is the cert petition.
Other briefs supporting the petition are here as well.
Cert Petition in California v. Cachil Dehe Band of Wintun Indians
Ah, Rule 19! Here is California’s cert petition — california-petition-for-cert
Just so everyone knows, I called this YEARS ago! See my “The Comparative Rights of Indispensable Sovereigns.” 🙂
And here are the lower court materials (Rincon Band; Cachil Dehe; and San Pascqual). And here is our post on Pimentel.
Questions Presented (from the cert petition):
In 1999, the State of California and sixty-one federally recognized tribes entered into virtually identical tribal-state class III gaming compacts (Compacts) under the authority of the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721 (IGRA). The Compacts allow those tribes to operate slot machines if they have been issued licenses for those devices from a prioritized and limited license pool established by the Compacts, or if they have obtained a compact amendment allowing them to operate slot machines without reference to that license pool. The questions presented are:
1. In applying Federal Rule of Civil Procedure 19 (Rule 19), may a federal court, consistent with the rule of decision in Republic of the Philippines v. Pimentel, 128 S. Ct. 2180 (2008), utilize the authority it has under Rule 19(b) to safeguard (through the shaping of relief) the legally protected interest of an absent sovereign as a basis for finding that the absent sovereign is not a required party within the meaning of Rule 19(a)?
2. May the asserted ability of a court of appeals to resolve inconsistent district court decisions on the same claim for relief be relied upon to conclude that an absent person need not be joined under Rule 19(a)?
Kate Fort on “The New Laches” in the George Mason Law Review
Kathryn E. Fort (MSU) has published “The New Laches: Creating Title Where None Existed” in the George Mason Law Review. From the introduction:
Recent legal decisions dealing with Indian land claims have been cre-ating title for private property owners where no title previously existed. As has been explored by others, various areas of property law have been turned upside down in order to defeat tribes in court. However, one area, equity, has received special attention from the courts. Specifically, the equitable defenses of laches, acquiescence, and impossibility were used by the United States Supreme Court in City of Sherrill v. Oneida Indian Nation to hand defeat to the Oneida Indian Nation on a tax issue. Since then, lower courts in the Second Circuit have used this precedent to deny Indian land claims altogether. But is the use of these three defenses based on precedent them-selves? A careful examination of City of Sherrill and its progeny reveals that these defenses have in fact been combined to create a new defense, what I will call the “new laches” defense.
Coverage of Native Hawaiian Case in the SCT
From the Molokai Dispatch (via How Appealing):
The United States Supreme Court in Washington, DC may be far away, but it will soon tackle an issue close to home for Molokai residents – ceded lands. The highest court in the land will address whether the State of Hawaii has the jurisdiction to sell lands that remain in dispute.
And the timing could not be more interesting. 2009 marks the 50th anniversary of Hawaii statehood. All this less than a month after Hawaii saw its first son elected president. This year is shaping up to be one for records, when it comes to Hawaii in the national conversation.
Turtle Talk 
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