Is here — seminole-tribe-v-florida-house-of-representatives-cert-petition
Here is the Florida Supreme Court’s decision and a link to the briefs below.
Supreme Court
Larry Plamondon and the Keith Case Redux
Larry Plamondon, a member of the Grand River Band of Ottawa Indians, is profiled in the new paper by Trevor Morrison on the Supreme Court case, United States v. District Court (the Keith case, named after Judge Damon Keith). Here is a link to the paper (via Legal History Blog), which is part of the Presidential Power Stories book.
And it’s great to see Larry’ autobiography, Lost from the Ottawa (available at Nokomis), featured in an important piece of legal scholarship.
Obama Judicial Appointments and the Supreme Court
Today’s WaPo article on the possibility that President Obama’s judicial appointments to the federal courts of appeal might reshape much of American law raises a few interesting questions, perhaps ones that can be empirically assessed over the course of his administration.
According to the article, 56 percent of the current federal court of appeals judges were appointed by Republican presidents, and Obama could flip that. But the Supreme Court’s current conservative bent is unlikely to change much during his term, even if it stretches two terms.
My hypothesis is that the Roberts Court, assuming more and more appellate court decisions are “liberal,” will grant cert in more and more cases to counteract the trend. The Ninth Circuit, which is still a majority Democrat appointed bench, is the circuit most reversed by the Court right now.
I think there must be a relation to the general conservatism of the lower courts and the lack of cases in which the Roberts Court grants cert. It might only be 10-15 cases a year, but that’s still pretty significant.
Navajo Nation and Office of Hawaiian Affairs Oral Argument Dates
From SCOTUSblog:
Mon., Feb. 23:
U.S. v. Navajo Nation (07-1420) — federal government duty to protect Indian tribe’s mineral rights
Rivera v. Illinois (07-9995) — effect on conviction of erroneous denial of peremptory challenge to a juror
Tues., Feb. 24:
Burlington Northern v. U.S. (07-1601) and Shell Oil v. U.S. (07-1607) — liability for cleanup of toxic waste dump (cases consolidated for one-hour hearing)
Carlsbad Technology v. HIF Bio, Inc. (07-1437) — Circuit Court authority to review District Court order returning case to state courts
Wed., Feb. 25:
Hawaii v. Office of Hawaiian Affairs (07-1372) — authority of a state to sell state lands
Flores-Figueroa v. U.S. (08-108) — proof needed under federal identity theft law
Slate on Petition Stage Amicus Briefs before the Supreme Court
From Slate:
In its last term, the U.S. Supreme Court heard fewer cases than it has in any single term in more than 50 years. This means that getting your case heard at the high court is about 10 times harder than getting into Harvard. How do you up your odds? Just as a recommendation letter from a well-placed alum gets attention from an admissions office, a supportive brief from an advocacy group, sent to the court at the stage when it’s deciding whether to take a case, flags a case for the justices.
Each year, parties that have lost in the lower courts file about 9,000 petitions for a writ of certiorari (cert for short) in which they beg the court to hear them. The Supreme Court has nearly complete discretion over which cases it will take. Last term, only 69 cert petitions resulted in arguments before the justices. The lucky few were more likely to have gotten a helping hand from a friend-of-the-court brief, filed by an outside group with an interest in the case’s outcome. Influence, in this sense, is all about timing. Amicus briefs, as they’re known, tend to pile up on both sides of a case once the court takes it, all competing for the justices’ attention. But the amicus briefs filed before the court grants cert are much rarer, and, accordingly, more influential. Yet this is a tool that liberal groups often fail to use.
United States Merits Brief in United States v. Navajo Nation
Here.
Harrah’s v. NGV Gaming Cert Petition
The questions presented are:
1. Does the Dictionary Act’s rule that words used in the present tense also include the future tense, unless the context indicates otherwise, only apply if the statutory text at issue is ambiguous?
2. Does the term. “Indian lands” as used in 25 U.S.C. §§ 81 and 2701-2721 include both land that “is held by the United States in trust for an Indian tribe” and land that “will be held in trust by the United States for an Indian tribe”?
Here is the brief — harrahs-v-ngv-gaming-cert-petn
And here is the lower court opinion — guidiville-band-v-ngv-gaming
Christian McMillan Wins Reid Prize for “Making Indian Law”
Congrats to Christian McMillen for this award. Incidentally, Professor McMillen is a named amicus in the historians brief in Carcieri v. Kempthorne.
John Phillip Reid Book Award (H/t to Legal History Blog and Patrick O’Donnell)
Named for John Phillip Reid, the prolific legal historian and founding member of the Society, and made possible by the generous contributions of his friends and colleagues, the John Phillip Reid Book Award is an annual award for the best book published in English in the previous year in any of the fields broadly defined as Anglo-American legal history.
Christian W. McMillen’s Making Indian Law: The Hualapai Land Case and the Birth of Ethnohistory is a deeply researched and elegantly written study of the Hualapai case and its background.
Supreme Court Upholds Bill of Rights 5-4
From the Onion:
WASHINGTON—In a landmark decision Monday, the U.S. Supreme Court narrowly ruled to uphold the Bill of Rights, the very tenets upon which American society is based. “After carefully considering the relevance of the 10 inviolable rights that comprise the ideological foundation on which our nation is built, the court finds that these basic freedoms remain important for the time being, and should not be overturned,” read the majority opinion authored by Justice Anthony Kennedy, who cast the tie-breaking vote. “Until such time as it can be definitively proven that citizens no longer require the protections provided by the Bill of Rights, it shall remain the principal legal guidance for the United States of America.” The Supreme Court’s latest decision comes on the heels of last month’s 6-3 ruling to abolish the pursuit of happiness from the three inalienable rights guaranteed by the Declaration of Independence.
Commentary on Possible Obama SCT Nominees
Now that the election is over, the commentaries on who President Obama might nominate to serve on the Supreme Court have begun in earnest. The crop of leading names, all of which is crazily speculative, are very exciting in general. There may be more Indian law judicial and practitioner experience in this group than ever before.
Here are a list of the more prominent names, taken from the ABA Journal’s list on page 63 of its November 2008 issue, and their import for Indian Country based on their experience in Indian law cases:
1. Judge Diane Wood
Judge Wood sits on the Seventh Circuit, which doesn’t hear very many Indian law cases, but she does have a significant track record.
She wrote the majority opinion in U.S. v. Long (2003), in which the court upheld the Duro fix prior to the Supreme Court’s decision in U.S. v. Lara. In Wisconsin v. EPA (2001), she wrote the majority opinion, in which the court held that the EPA’s decision to grant treatment-as-state status to the Sokaogon Chippewa Community was reasonable. In Sokaogon Chippewa Community v. Babbitt (2000), she wrote the majority opinion in a case the court held it was reasonable for the district court to reject the St. Croix Chippewa Tribe’s motion to intervene in a gaming case involving three other Wisconsin tribes. In Thomas v. United States (1999), she wrote the majority opinion holding that the LCO Chippewa Band’s tribal council was not a necessary party to a claim challenging the outcome of a Secretarial election. Most recently, in Burgess v. Walters (2006), she wrote the majority opinion upholding the State of Wisconsin’s action in committing an Indian based on the PL280 criminal/prohibitory — civil/regulatory analysis.
Without a doubt, Judge Wood’s opinions in her several Indian law cases demonstrate that she is very respectful to Indian tribes and to tribal sovereignty. Wisconsin and Long could have easily gone the other way. Even in the cases she were rules against tribal interests, she does not denigrate Indians and tribes in any way.
2. Seth Waxman
Mr. Waxman is another interesting choice for Indian Country. He has more experience in litigating federal Indian law cases than any of the others mentioned for a nomination. As the US Solicitor General under President Clinton, his name is appended to dozens of Indian law cases (e.g., Minnesota v. Mille Lacs, Idaho v. United States, other cases from 1997-2001), but he never argued an Indian law case before the Court during that time. However, since he’s been back in private practice he’s worked at least three Indian law cases — City of Roseville v. Norton (D.C. Cir. 2003), San Manuel Indian Bingo and Casino v. NLRB (D.C. Cir. 2007), and MichGO v. Kempthorne (D.C. Cir. 2008), all on behalf of the tribes involved in those cases.
His experience in Indian law is outstanding and, like Judge Wood, might help the Court see Indian law in a new light.
Turtle Talk 
You must be logged in to post a comment.