This is for the January 23 conference (today, the Court will consider the MichGO v. Kempthorne petition).
From SCOTUSblog:
Docket: 08-655
Title: Harrah’s Operating Company, Inc. v. NGV Gaming, Ltd.
Issue: Whether the term “Indian lands” in 25 U.S.C. 81(a) applies only to land currently held in trust by the United States or also to land that will be held in trust.
from SCOTUSblog:
Yesterday, the Stanford clinic filed this cert. petition in Navajo Nation v. U.S. Forest Service, dealing with the circumstances in which governmental action may constitute a “substantial burden” under RFRA. Jeff Fisher is counsel of record in the case; he was ably assisted by Stanford students Jaime Huling Delaye, Scott Noveck, David Schwartz, and David Muraskin.
Here is a short article advising farm lenders on the outcome of Plains Commerce Bank, authored by Greg Taylor — taylor-on-farming-lenders-in-indian-country
Here is the summary:
The Supreme Court’s 5-4 decision last term in Plains Commerce Bank v. Long Family Land and Cattle Co. was controversial in the sense that the Court was called upon to address two highly-charged legal issues: (1) tribal sovereignty and the ability to control matters that affect their lands and the treatment of its citizens, and, (2) the terms and conditions under which non-Indian banks and other businesses may be expected to resolve disputes arising from their dealings on the reservation. The majority opinion, written by Chief Justice Roberts, overturned a decision by the Eighth Circuit that held that a tribal court may entertain a discrimination claim over a non-tribe member who regularly conducts business on the reservation. In reaching its decision, the Court focused on the status of the ownership of the land in question. The Native American community was understandably disappointed by the result; there had been hopes that the case would provide an opportunity for the Supreme Court to reconsider its views on tribal sovereignty.
The certiorari stage briefing in Michigan Gambling Opposition v. Kempthorne (No. 08-554) is complete with the filing of the petitioner’s reply brief (here).
The conference where the Court will discuss this case is January 9.
From the Legal History Blog:
On Friday, January 23, at 12:30 PM, Christian McMillen, Department of History, University of Virginia, will present two papers: “The Historians’ Brief in Carcieri v Kempthorne,” an Indian law case from the Supreme Court’s current term, and “Proof, Evidence and History in Indigenous Land Claims,” a paper blending history with the law in the early years of Indian claims. McMillen is the author of Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory (Yale University Press, 2007), which has recently won book prizes from the American Society for Legal History and the William Nelson Cromwell Foundation.
This is a webcasted event at the Miller Center for Public Affairs at the University of Virginia.
SCOTUSblog has listed MichGO v. Kempthorne as a petition to watch (see post here) for the January 9 conference. Here are the briefs, etc.:
Docket: 08-554
Title: Michigan Gambling Opposition v. Kempthorne
Issue: Whether Section 5 of the Indian Reorganization Act, which gives the Secretary of Interior discretion to acquire lands for Native Americans, is an unconstitutional delegation of legislative authority.
From the NYTs:
The Supreme Court’s decision in Bush v. Gore, issued eight years ago this month, was widely understood to work like that tape recorder in “Mission: Impossible.” It was meant to produce a president and then self-destruct.
“Our consideration is limited to the present circumstances,” the majority famously said, “for the problem of equal protection in election processes generally presents many complexities.”
That sentence, translated from high legal jargon into English, was generally taken to mean this: The decision was a ticket for one ride only. It was not a precedent. It was a ruling, yes, but it was not law.
But now, as the petitioner leaves the national stage, Bush v. Gore is turning out to have lasting value after all. “You’re starting to see courts invoke it,” said Samuel Issacharoff, a law professor at New York University, “and you’re starting to see briefs cite it.”
Divorced from its earlier context, the growing point of the case is to impose order on often chaotic election processes in the states.
“Bush v. Gore introduced an important idea,” Professor Issacharoff said. “It is that the political process has rules, the rules have to be fairly applied and what those rules need to be known up front.”
Bush v. Gore was, for instance, unapologetically at the heart of a unanimous decision last month from the United States Court of Appeals for the Sixth Circuit, in Cincinnati, allowing a comprehensive challenge to Ohio voting systems to move forward. The three-judge panel acknowledged the Supreme Court’s admonition about the limited precedential value of Bush v. Gore. Nonetheless, the panel said, “we find it relevant here.”
The United States Department of Justice has been thinking a little bit about what will happen if the Supreme Court rules against the Secretary of Interior in Carceri v. Kempthorne. We’ve already suggested that, based on oral argument, that the Secretary’s authority under Section 5 of the Indian Reorganization Act will be sharply limited in relation to tribes “not under federal supervision” or “under federal jurisdiction in 1934.”
In the recent filing opposition a petition for a writ of certiorari in MichGO v. Kempthorne, a direct challenge to Section 5 as applied to all tribes, the Solicitor General’s officer may have laid the groundwork for a post-Carcieri world. The MichGO petitioners, who have been using the litigation to delay the opening of the Gun Lake Band of Pottawatomi Indians’ casino for years, appear to be pushing the Supreme Court to hold the MichGO petition until after Carcieri is decided (likely in January or February). But the government argued that no such delay was necessary, because (and this is the key part, where the United States asserts what will happen if the Court rules against the government):
Here is the brief (courtesy of Indianz) — ussg-opposition
Is here — gun-lake-band-cert-opposition
MichGO’s cert petition is here, as are links to the lower court materials.
Turtle Talk 
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