Supreme Court – Page 166

Kickapoo v Texas — Texas Asked to Respond to Cert Petition

June 3, 2008Matthew L.M. Fletcher

Mildly interesting development in the Kickapoo case regarding the CA5’s decision to strike down the so-called Class III procedures (aka the “Seminole” fix). Kickapoo filed the cert petition, a tribal amicus brief supported the petition, but then Texas declined to respond (which is a respondent’s prerogative, especially in a case where there does not appear to be a clean circuit split). The US, the defendant in the original case, filed a brief urging the SCT to decline the case, although the brief went into detail into just how wrong the government thought the CA5 decision was.

Now the Court has asked for Texas to respond. In my limited experience with the Court’s internal dynamics, the Court might do this as a means of delaying a decision on a cert petition, but for what, in this case, I don’t know.

Tongue River Dispute — Montana v. Wyoming Orig.

May 21, 2008Matthew L.M. Fletcher

This case arises out of a dispute between the two states over the Tongue River, which serves as a source of water for the Northern Cheyenne: “The Northern Cheyenne, whose primary water source is the Tongue River, lent their support to Montana in a move to protect their own claims. The compact specifically says that nothing in the document ‘shall be so construed or interpreted as to affect adversely any rights to the use of the waters of the Yellowstone River and its tributaries owned by or for Indians, Indian tribes and their reservations.'” (from the Billings Gazette).

Here is the government’s brief favoring Montana’s position.

Other briefs will be posted as they come on line.

United States v. Navajo Nation Cert Petition

May 16, 2008Matthew L.M. Fletcher1 Comment

The United States petitioned for cert in the ongoing Navajo Nation case over the Peabody Coal debacle. The Supreme Court held in 2003 that the Indian Mineral Leasing Act did not create a duty, but the Federal Circuit on remand resurrected the claim. Once again, the claim may give rise to $600 million in damages to the United States.

us-v-navajo-cert-petition

The lower court materials (briefs and opinions) are here.

Ho-Chunk Nation v. Wisconsin Cert Petition

May 15, 2008Matthew L.M. Fletcher1 Comment

Ho-Chunk Nation has filed a cert petition in its dispute over revenue sharing with the State of Wisconsin.

Here is the petition — hcn-cert-petition

Here is the docket site — No. 07-1402.

Here are the rest of the materials — CA7 opinion and some briefs — rest of the materials.

Kickapoo v. Texas on Petitions to Watch List

May 15, 2008May 15, 2008Matthew L.M. Fletcher

SCOTUSBlog isn’t taking any chances with Indian law now. 🙂

The Kickapoo v. Texas petition is on its watch list for the May 29, 2008 conference (here).

Docket: 07-1109
Case name: Kickapoo Traditional Tribe of Texas v. Texas, et al.
Issue: Whether, following Seminole Tribe v. Florida (1996), the Secretary of the Interior may establish procedures for Indian gaming if a state declines to enter a compact with the Tribe and invokes immunity from suit under the 11th Amendment.

Opinion below (5th Circuit)
Petition for certiorari
Brief in opposition (Federal respondent)
Petitioner’s reply
Amicus brief of Jena Band of Choctaw Indians, et al. (in support of the petitioner)

Third Part of Billings Gazette Special Report on Tribal Sovereignty

May 8, 2008Matthew L.M. Fletcher

From the Billings Gazette:

Despite court rulings that slice away at tribal sovereignty, Indian law specialist Tom Fredericks of Boulder, Colo., believes “tribal governments are stronger than ever.”

They have to be. Retreating federal budgets place ever more burden on Indian governments to provide basic services.

The Bureau of Indian Affairs for years has been turning more federal responsibilities over to the tribes, contracting with them to provide services such as law enforcement, education and social services on the reservations.

Continue reading →

Carls v. Blue Lake Housing Authority Cert Petition Briefs Filed

May 5, 2008Matthew L.M. Fletcher

While the chances for this petition on tribal sovereign immunity to be granted seem pretty slim, who knows? The cert petition briefs are all in and available here. We’ll know after the conference on May 8, 2008.

Kickapoo v. Texas — US Recommends Cert Denial

May 1, 2008Matthew L.M. Fletcher

In the Kickapoo Tribe’s petition for cert to the Supreme Court re: the Class III Procedures (i.e, the Seminole Tribe “fix”) that were invalidated by the Fifth Circuit, the United States (ostensibly on the same side as the Tribe) filed a brief opposing certiorari (here). The State of Texas had already declined to respond to the cert petition.

The government’s brief is an interesting read. First, the US says the Fifth Circuit was wrong on any number of points — namely, that the court incorrectly held that the case was ripe for decision (the procedures were not yet complete) and that the court incorrectly held that the Secretary was not authorized to issue the regulation in the first place. Second, the government says there is no reason to hear this case now, given that it would be a case of first impression for the Supreme Court (usually a death knell for cert petitions) and that the Fifth Circuit’s panel decision was split three ways.

If there was any doubt that the Kickapoo petition would be denied, this brief effectively dispels that doubt.