Supreme Court

Ronald Krotoszynski on Employment Division v. Smith II

Matthew L.M. Fletcher

Ronald Krotoszynski has published “If Judges Were Angels: Religious Equality, Free Exercise, and the (Underappreciated) Merits of Smith” in the Northwestern University Law Review. Here is an excerpt from the introduction:

Thus, the standard approach is to link the importance of religious autonomy with a strict form of judicial scrutiny for governmental actions that have the incidental effect of denying religionists, including but not limited to members of minority religions, the ability to engage in religiously motivated conduct. Viewed from this vantage point, Smith is highly objectionable because it makes successful free exercise challenges to general laws virtually impossible to win. Even if the federal courts have not applied strict scrutiny in an exacting fashion, lowering the standard of review to mere rationality virtually ensures that most free exercise claims will fail. Thus, the Justices who support strict scrutiny of neutral laws of general applicability that burden religiously motivated practices, such as Justice Brennan and Justice O’Connor, object strenuously to Smith’s change in the governing standard of review from earlier cases, such as Sherbert and Wisconsin v. Yoder, the latter a case that upheld a free exercise claim brought by Amish parents who wished to remove their children from the public schools after the eighth grade. If the Free Exercise Clause exists to facilitate absolute religious autonomy, the Sherbert approach advocated by Justices Brennan and O’Connor would better honor free exercise values. At the very least, it certainly seems reasonable to frame the Free Exercise Clause in terms of religious autonomy.

Rather than as advancing religious liberty or autonomy values, one could alternatively conceive of the Free Exercise Clause as primarily promoting religious equality. If equality among sects is the primary purpose of the Free Exercise Clause, the Smith test (or something like it) might offer a better reading of the Clause than Sherbert and Yoder.

Narragansett Tribe’s Amicus Brief in Carcieri v. Kempthorne

Matthew L.M. Fletcher

Here is the Narragansett brief in Carcieri. As we get them, we’ll post them.

Narragansett Amicus Brief

Alex Skibine on Formalism and Judicial Supremacy in Federal Indian Common Law

Matthew L.M. Fletcher

Alex Skibine has posted “Formalism and Judicial Supremacy in Federal Indian Common Law,” forthcoming in the American Indian Law Review. Here is the abstract:

In this article, Professor Skibine shows how in the last thirty years or so, the United States Supreme court has taken legal principles based on functionalism and transformed them into inflexible rules based on formalism. This has allowed the Court not only to rule against Indian tribal interests in 80% of its cases but also to achieve judicial supremacy in the field of Federal Indian law.

Government’s Brief in Carcieri v. Kempthorne

Matthew L.M. Fletcher

Here it is — us-brief

Lawrence v. US DOI Cert Petition — Indian Preference (Fire Fighter Benefits)

Matthew L.M. Fletcher

Here is the cert petition in Lawrence v. United States DOI. Here is the Ninth Circuit’s opinion.

And here are the questions presented, from the cert petition:

1. Can the Department of Interior ignore the imperative of the Indian Preference Act (25 USC § 47.2) by “blindly” applying civil service regulations [5 USC § 831.906(b)], which effectively deprives Indian firefighters on Indian Reservations of the enhanced retirement benefits [5 USC § 8336(c)(1)] to which they may otherwise be entitled.

2. Whether the Secretary of Interior can, by failing to adopt any standards by which the BIA could identify Indian employees as firefighters, thereby exclude the majority of Indian civil service firefighters on Indian Reservations from timely filing for previous years credits toward their enhanced retirement benefits. [ Preston v. Heckler, 734 F.2d 1359 (9th Cir. 1984)]

3. Whether the trial, court erred in ruling that evidence of few BIA Indian firefighter employees applying for enhanced retirement benefits, when, in fact, the BIA employs a majority of Indian firefighters, did not satisfy a prima facie showing of disparate impact.

MichGO v. Kempthorne — Stay Issued

Matthew L.M. Fletcher

From the AP:

WASHINGTON — A federal appeals court has issued a stay preventing a proposed tribal casino in Allegan County from moving forward.

The D.C. Circuit Court of Appeals issued the order Friday pending a potential review from the U.S. Supreme Court. Opponents of the casino have asked the Supreme Court to hear the case.

The Gun Lake tribe wants to build a $200 million casino in Allegan County’s Wayland Township. A group called Michigan Gambling Opposition has spent years trying to stop the casino from being built.

The appeals court sided with the tribe earlier this year, upholding a decision by the federal government to set aside 147 acres of land where the casino would be built near Grand Rapids.

ICT on MichGO’s Ongoing Legal Wrangling

Matthew L.M. Fletcher1 Comment

From ICT:

WAYLAND COUNTY, Mich. – In an effort to take advantage of every possible opportunity to delay the Gun Lake Tribe’s casino, the anti-Indian casino group Michigan Gambling Opposition – MichGO – has asked a court to stop all further action while the group files a petition for a writ of certiorari with the U.S. Supreme Court.

MichGO’s latest tactic followed a July 25 ruling by the U.S. District Court of Appeals for the District of Columbia denying the group’s request for a full panel, or en banc, rehearing of the court’s 2 – 1 decision in April upholding a district court decision to allow the Interior Department to take 147 acres of land into trust for the tribe’s proposed $200 million casino.

Continue reading →

Shortchanging Indian Country

Matthew L.M. Fletcher1 Comment

Recently, the district court in Cobell v. Kempthorne awarded the Indian plaintiffs about $455.6 million. This is down from the $7 billion on the table a while back.

And now, the Supreme Court has decided to defer a question on the mere interest of an award to the Exxon Valdez plaintiffs, including Alaskan Native villages, of about $488 million. And that is just on the compensatory damages award of over $500 million, far less than the billions of punitive damages awarded in the original verdict.

My guess is that the Court will keep driving these numbers down if they get a chance to the future.

Kemp v. Osage Nation Cert Opposition Brief

Matthew L.M. Fletcher

This case, which I suspect has a fairly good chance of being granted, involves the Osage Nation’s successful suit against the Oklahoma Tax Commission to declare its Indian Country boundaries. The cert petition post is here, which includes the lower court decision and the relevant briefs. Here is the opposition brief.

osage-cert-opp-brief

New Challenge to Kamehameha Schools Admissions Policy Filed

Matthew L.M. Fletcher1 Comment

From SCOTUSBlog:

The six-year running battle over the admissions policy of a highly regarded trio of private schools in Hawaii — the Kamehameha Schools — is back in the courts, with one side specifically aiming for an ultimate test in the Supreme Court.   An earlier case, testing whether an 1866 civil rights law still bars the use of race in private school admissions, reached the Court last year, but was settled before the Justices took final action on it.

A new lawsuit, raising the same challenge, was filed Wednesday in U.S. District Court in Hawaii — with the same name (Doe v. Kamemameha Schools), but with new individuals suing (docket 08-359).  Also on Wednesday, the Schools filed a separate lawsuit in state court in Hawaii, claiming a violation of the 2007 settlement agreement because one of the attorneys involved had disclosed the confidential terms of the deal, including, the attorney said, a payment of $7 million to the youth who had sued.  The Schools’ trustees are seeking return of the money, and other money damages.  (The Feb. 8, 2008, Honolulu Advertiser news story revealing the settlement terms can be read here.)

The new Doe lawsuit in federal court notes that the earlier challenge to the admissions policy, preferring students of “Hawaiian ancestry,” had failed in both the District Court and in the en banc Ninth Circuit Court. The two lawsuits, it says, are “virtually identical,” but it indicates that the four youths and their parents who sued “intend by this action to have that [Ninth Circuit] ruling overturned in the Supreme Court of the United States.”

The first lawsuit against the Schools’ admission policy was filed by a youth identified only as “John Doe”, who sued in June 2003 after being denied admission four times. He is a lifelong resident of Hawaii, but is not “Native Hawaiian” in a racial sense, his challenge noted.  As a minor, he was joined in the lawsuit by his mother, identified only as “Jane Doe.”  The Kamehameha Schools are three kindergarten-through-twelfth-grade private schools on three of Hawaii’s islands.

A press release describing the new civil rights claim can be found here (it includes a link to the text of the complaint).  A press release by Kamehameha Schools announcing its state court lawsuit over the settlement disclosure is here.   The text of the school trustees’ complaint can be found here.