The City of Pocatello is petitioning for certiorari in this subproceeding in the Snake River General Stream Adjudication.
Here is the Idaho Supreme Court decision.
Supreme Court
South Fork Band v. United States Cert Petition
This case concerns an attempt by the Western Shoshone bands to secure a remedy against to the United States denied in the U.S. v. Dann case.
Here is the brief — south-fork-band-v-us-cert-petition
Ho-Chunk Nation Reply Brief in HCN v. Wisconsin Cert Petition
Here is it: hcn-reply-brief
And here is the cert opposition: wisconsin-cert-opposition
Earlier materials are here.
Kickapoo v. Texas — State’s Opposition to Cert Petition
The State of Texas filed its opposition to the cert petition filed by the Kickapoo Tribe way back in February. Here is the brief — texas-cert-opp
And here is our previous post on the lower court portion of this case (with briefs), as well as a link to the Supreme Court Project’s site.
If you’ll recall, despite a USSG recommendation to deny the petition, the Court still asked for a response from the State.
John Yoo on Andrew Jackson
John Yoo, author of some of the notorious torture papers, just published “Andrew Jackson and Presidential Power” in the Charleston Law Review. I guess it’s not surprising that a scholar with a such robust view of Executive power would try to resurrect Jackson. Here’s an excerpt concerning Worcester v. Georgia:
Although Jackson did nothing to support the Court’s constitutional powers, he acted to defuse the political crisis. Rather than defy the Supreme Court outright, the Georgia courts simply refused to acknowledge the Supreme Court’s decision. Without any formal acceptance or rejection of Worcester by the state courts, the Supreme Court had no formal legal authority to order Georgia to obey the decision. Even if Georgia had openly refused to obey Worcester, the Supreme Court recessed for nine months and was unable to reverse the State’s decisions. Jackson commented that “the decision of the supreme court has fell still born, and they find they cannot coerce Georgia to yield to its mandate.” The confrontation, however, generated political trouble for the Administration. Newspapers widely reprinted Worcester, which served as ammunition to attack Jackson in his soon-approaching re-election campaign. Jackson and Van Buren worked through the party machinery to convince the Governor of Georgia to commute the sentences in exchange for the missionaries’ agreement not to seek further Court review. Indian issues would figure in the election of 1832, and Jackson would take his overwhelming re-election as a validation of his Indian removal policy.
Even though this paragraph seems internally inconsistent, it appears to be a more nuanced view of the Worcester crisis for Jackson.
Matheson v. Gregoire Cert Petition
The questions presented are:
Whether the State of Washington Cigarette Tax laws are federally preempted and inapplicable to an American Indian motor carrier hauling cigarettes between Indian reservations in Interstate and Indian Commerce.
Whether the laws of the State of Washington can regulate an enrolled tribal Indian shipping goods between a federally recognized Indian Reservation in Idaho to his business on the reservation of his membership located in the State of Washington.
Republic of Philippines v. Pimentel — Rule 19 and Sovereign Immunity
The Supreme Court released its opinion in Republic of Philippines v. Pimentel, just a few minutes ago. The case involved a claim under the Foreign Sovereign Immunities Act and FRCP 19 that a human rights claim involving the Philippines should be dismissed for failure to join an indispensable party (a sovereign entity with sovereign immunity). The briefings featured several Indian law cases decided by the lower courts.
The Supreme Court’s opinion highlighted one of these opinions, Wichita and Affiliated Tribes v. Hodel, 788 F.2d 765 (D.C. Cir. 1986). This is one of the strongest pro-tribal sovereign opinions on this question ever decided. Good deal, despite the bad outcome for human rights claimants in general.
Oneida Fee to Trust Lawsuits Commentary
Indianz reports that a plethora of lawsuits will be filed against Interior’s decision to take land into trust for the Oneida Indian Nation of New York.
Bear in mind that (in my limited understanding) much of the land in question here is the same land in question in the City of Sherrill v. Oneida Indian Nation case from 2005. Unfortunately (we now know), the Nation sought to avoid state and local taxation and regulation on that land when it was held in fee simple under federal Indian law principles. Those principles supported the OIN, but only as far as the Supreme Court, which reversed.
Now the OIN is pursuing the path they (perhaps, in hindsight) should have pursued all along — asking the Secretary to take the land into trust. So far, they have been successful, which was no easy feat given the mountain of documentation required to convince the Secretary, but several years have passed since this started, and there might be a new legal climate on the constitutionality of the fee to trust statute, 25 U.S.C. 465.
Perhaps as early as next fall, the Supreme Court might rule in Carcieri v. Kempthorne that the Secretary has no authority to take land into trust for tribes not recognized in 1934. After that, the Oneida case is the kind of case that the Supreme Court might be willing to use to decide whether or not the fee to trust statute is unconstitutional on its face. I would be surprised, because a successful challenge to the fee to trust statute likely would require the Court to go in depth into its nondelegation doctrine and/or Tenth Amendment jurisprudence, areas in which the Roberts Court has not expressed much interest.
We’ll see.
Kemp v. Osage Nation Cert Petition
Here, the Oklahoma Tax Commission is seeking review of a CA10 decision allowing a suit brought by the Osage Nation to proceed over sovereign immunity objections. Here is our post about the CA10 decision, with briefs and other materials. And here is the cert petition.
Here are the questions presented (from the petition):
1. May federal courts employ the doctrine of Ex parte Young, 209 U.S. 123 (1908), to permit suits by Indian tribes, otherwise barred by state sovereign immunity, that seek to establish sovereignty and jurisdiction over historical reservations, without taking into consideration the substantial impact of the relief on the sovereignty and jurisdiction long-exercised over such lands by states?
2. In view of this Court’s ruling in Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261 (1997), and other decisions, may a federal court allow an Indian tribe’s suit – otherwise barred by the Eleventh Amendment – to proceed against state officers under the so-called “straightforward inquiry” used to determine the application of the Ex parte Young exception, when the relief would divest a state of substantial and long-exercised civil and criminal jurisdiction over its largest county?
3. Does a suit by an Indian tribe seeking a judicial determination that its historical reservation “remains” a present-day reservation involve the type of retrospective relief that cannot be pursued against state officers under the Ex parte Young exception to state sovereign immunity?
Turtle Talk 
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