Supreme Court

“Factbound and Splitless” Talk

Matthew L.M. Fletcher

Here’s the abstract for my talk tomorrow at U-M Law School, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”

The process by which the Supreme Court reviews petitions for writs of certiorari is intended to parse through the thousands of petitions to pick out the most important cases for the Court to decide. These include cases in which there is a split of authority, cases in which a lower court has committed a gross error, or cases in which there is a critical constitutional issue at stake. Cases in which there is no split, cases that will affect only a few people, cases involving simple error correction, or cases involving an unimportant issue are unlikely to be heard by the Court.

Since the 1980s, more and more Justices have resorted to a pool of law clerks for a write-up of each cert petition that includes a recommendation of whether or not the Court should grant cert using these factors. With the release of Justice Blackmun’s papers, the cert pool petitions from the docket years 1986 to 1993 are available for study. The views of Supreme Court clerks in the cert pool memos are often the only written documentation of the Court’s views of the vast majority of petitions that are denied.

The certiorari process creates a structural barrier to the fair adjudication of federal Indian law cases. Because over 80 percent of Indian law cases arise in three circuits, few circuit splits arise, rendering most petitions “splitless.” Moreover, since Indian law cases are often sui generis, they are labeled “factbound.” Most importantly, Supreme Court clerks do not find Indian law cases to be important in regards to the legal issues in dispute, except when the petitioner is a state or local government opposing a tribal interest such as a tribe or a tribal member.

What this means is that the clerks almost never recommend a grant when the petitioner is an Indian tribe or an Indian because the petition is “splitless,” “factbound,” or just unimportant. Conversely, when a state or local government petitions, the Court grants the petition around 75 percent of the time, regardless of whether any split exists. Perhaps this is part of the explanation for why tribal interests have lost 75 percent of their cases before the Court since 1987.

The classic case is a treaty rights case brought by a tribe. If the tribe loses below, the clerks will never find a split in authority because the treaty is unique, making the case sui generis. And Supreme Court clerks almost never find the petitions of Indians and Indian tribes to be important enough to be certworthy. But if the tribe wins below, the opponents usually are state governments, whose cert petitions are viewed favorably by the clerks.

This paper argues, as have occasional Supreme Court clerks, that the Court should recognize the special relationship that exists between the United States and Indian tribes in the certiorari process. The Court should also recognize the structural inequity of the certiorari process in the context of federal Indian law. Both of these changes could be accomplished through an amendment to Supreme Court Rule 10, which articulates the Court’s factors in considering certiorari petitions. Either the Court should grant more petitions filed by tribal interests or deny more petitions filed by tribal opponents.

Hope you can make it. The talk begins at 12:20 in Room 150 in the law school. Lunch is available. The talk is sponsored by the U-M NALSA and the Michigan Journal of Race & Law.

Tales from the Cert Pool: Montana Taxes at Crow

Matthew L.M. Fletcher

The Supreme Court denied cert in a case captioned Montana v. Crow Tribe of Indians, 484 U.S. 1039 (1988) (No. 87-343). The case involved the State’s attempt to impose severance and gross proceeds on a non-Indian mining company.

The cert pool memo (from a Rehnquist clerk no less) ripped the State’s argument:

[Montana]’s contention that its taxes should not be preempted because they fall on Westmoreland, rather than on the Crow Tribe itself, is ludicrous. The state severance and gross proceeds taxes have restricted the amount of taxation [Crow] can levy on its lessees. The CA9 found that the marketability of [Crow]’s coal was significantly diminished by [Montana]’s taxes, resulting in a corresponding decrease in the amount of money accruing to[Crow]’s coffers.

Cert Pool Memo at 7.

How times have changed. After Cotton Petroleum and Wagnon, states can strategically tax for the specific purpose of limiting on-reservation activities and all but eliminate tribal tax base.

Supreme Court Preview @ MSU Law College, Tuesday at 3:30 PM

Matthew L.M. Fletcher

I’ll be giving a talk tomorrow at the law college at the behest of the MSU chapter of the ACS: a preview of the 2007 Term of the Supreme Court.

Here’s a preview of the preview — namely, a list of the cases I plan on discussing tomorrow, with links to briefs and other materials as available:

Boumediene v. Bush (No. 06-1195)
Al-Odah v. Bush (No. 06-1196)

Al-Odah Petitioner’s Brief

El Banna Petitioner’s Brief

Boumediene Petitioner’s Brief

Respondent’s Brief

Baze v. Rees (No. 07-5439)

Cert Petition

Crawford v. Marion Election Board (No. 07-21)
Democratic Party v. Rokita (No. 07-25)

Crawford Cert Petition

Rokita Cert Petition

District of Columbia v. Heller (No. 07-290)

Cert Petition

Lower Court Decision

FCC v. Fox Television Stations (No. 07-582)

Cert Petition

United States v. Williams (No. 06-694)

Petitioner’s Brief

Respondent’s Brief

Reply Brief

Exxon Shipping Co. v. Baker (No. 07-219)

Cert Petition

Medellin v. Texas (No. 06-984)

Petitioner’s Brief

Respondent’s Brief

Reply Brief

Danforth v. Minnesota (No. 06-8273)

Petitioner’s Brief

Respondent’s Brief

Reply Brief

Oral Argument Transcript

Carcieri v. Kempthorne (No. 07-526)

Lower Court Decision

Cert Petition

Matthew L.M. Fletcher

Tales from the Cert Pool: Circuit Splits and Federal Indian Law

Matthew L.M. Fletcher

Most cases now reach the Supreme Court because of circuit splits or splits in authority between federal courts of appeal and state supreme courts, but federal Indian law is an exception. In my study of the digital archive of Justice Blackmun’s cert pool memos from docket years 1986-1993, perhaps a quarter of cases that attracted the Court’s attention (reaching the so-called “discuss list” at conference) did so because there was a split.

One reason for the lack of circuit splits in federal Indian law is geography — well over 80 percent of cert petitions arise out of the Eighth, Ninth, and Tenth Circuits (and the states located within those circuits).

Moreover, because the cert petition subject matters are based on treaties or statutes that apply only within a state or a region, there is little likelihood of there ever being a split where the federal circuit and the state supreme court agree. Two examples from my forthcoming paper, “Factbound and Splitless”:

In South Dakota v. Spotted Horse, the Justice Blackmun’s clerk wrote a supplemental memo to the cert pool memo in which she wrote, “As the poolwriter noted, there will never be a split on the question of South Dakota’s jurisdiction over these tribal highways because both CA8 and the S.D. SCt agree that the State is without jurisdiction.” In Tarbell v. United States, a criminal case involving the application of a federal statute that applied to New York Indians, the cert pool memowriter (Mark Snyderman, an O’Connor clerk) noted, “Of course, NY state is probably the only other jurisdiction that would have an opportunity to rule on the issue.”

In one famous instance, the Court granted cert in a case thinking there was a circuit split when there really wasn’t (or more accurately, the split dissolved when the Court decided the case). The cases were Anderson v. Wisconsin Dept. of Revenue and Oklahoma Tax Commission v. Sac and Fox Nation. In Anderson, the WI Supreme Court ruled that Indians living off the rez but working on the rez have to pay state income taxes. In Sac and Fox, the CA10 ruled that Indians living on trust land and working for the tribe on trust land don’t have to pay tax. That’s the split, but the split disappeared when the Court decided that trust land is the same as “Indian Country” — making the factual predicate for the split (the residence of the tribal member: one was off, one was on) disappear.

I go into greater depth in the paper, but the story basically is this. The OTC’s petition in Sac and Fox reached the Court first, but neglected to mention the Wisconsin case. The Wisconsin case reached the cert pool next, alleging the split in authority. The cert pool writer thought the Sac and Fox case was factually messier (because of the trust land question) so recommended the Court grant cert in Anderson. Also, the cert pool memowriter argued that the OTC was a bad litigant for not noting the split in the first place, so recommended that the Court go for the Wisconsin case instead. But Anderson filed indigent, and he shouldn’t have, so the Court had to order him to comply with SCT rules before his appeal would proceed. In the meantime, the Court decided to hear Sac and Fox instead. The Anderson pool memo is here and the Sac and Fox memo is here.

And it’s good thing too. Bill Rice’s mastery of oral argument before the Supreme Court can be heard here (with a little help from Edwin Kneedler).

Had the Court decided Anderson instead, it seems clear to me that it would have ruled against Anderson, who was living off the rez and refusing to pay state income taxes. Who know what would have happened to Sac and Fox Nation?

Tales from the Cert Pool: Cherokee Nation v. US (Arkansas River Navigation System claim)

Matthew L.M. Fletcher

The Cherokee Nation brought suit against the United States over the Arkansas River Navigation System, arguing that the government’s actions violated the “fair and honorable dealings” language of the Indian Claims Commission Act, 25 U.S.C. 70a. The Court denied the petition.

The cert pool memo in the case includes some of the most exasperated language from a clerk in any of the Indian law related cert pool memos in the Blackmun Digital Archive:

In providing for ‘claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity,’ [25 U.S.C. § 70a] Congress invited litigation on a potentially limitless class of so-called ‘moral’ claims against the govt. … But how’s a ct to tell when the govt has done something that, while permissible under law and equity, is nonetheless ‘unfair,’ ‘dishonorable,’ or ‘immoral?’ Over the years, the cts have tried to give shape to the inquiry by requiring a tribe asserting a moral claim to demonstrate a relevant ‘special relationship’ with the fed govt. Yes, as this case shows, that inquiry can be as amorphous as the one it’s supposed to clarify. Arguably, in the words of one judge, having a ‘special relationship’ w/ the govt means simply ‘that though there is no contract or treaty obligation, or formal trusteeship, honor may oblige the United States to take steps to protect Indians…. What honor requires depends on circumstances and will vary from case to case according to the conscience of the court.’ [United States v. Oneida Indian Nation of New York, 576 F.2d 870, 883 (Ct. Cl. 1978) (Nichols, J.).] Given the strangeness of the entire inquiry, one cannot easily evaluate either the merits or the certworthiness of petr’s claim.

Cert Pool Memo at 8-9, Cherokee Nation of Oklahoma v. United States, 504 U.S 910 (1992) (No. 91-1354).

What’s even more interesting is the annotation added to the memo by Justice Blackmun’s clerk, who is identified as “NB”:

I would not want to see the Ct take this case. Because it is not one the Ct would handle well, it would likely declare the provision to be unenforceable. (Imagine the opn of Scalia, J.) I think in the long run your friends are best served by denying cert.

Id. at 11.

Tales from the Cert Pool: Justice Blackmun’s Papers on Cotton Petroleum

Matthew L.M. Fletcher1 Comment

Cotton Petroleum Corp. v. New Mexico is one of the harshest outcomes in the modern era of Indian law cases decided by the Supreme Court. In this case, the Court held that states may tax non-Indian-owned businesses doing business in Indian Country, even where the tribe has imposed its own tax. In short, the states may double-tax non-Indians, effectively preempting tribal taxes on the tribe’s own land.

The recent uploading of Justice Blackmun’s papers on the internet offers a glimpse into the background of the case.

In Cotton Petroleum, two documents are available: The cert pool memo and Justice Blackmun’s docket sheet recording the votes of the Justices.

The Court decided to grant certiorari in this case over the recommendation of the cert pool memo to deny cert. Justices White, Stevens, O’Connor, and Blackmun voted to grant cert (in accordance with the Rule of Four, only four votes are required to grant cert), while Rehnquist, Brennan, Marshall, Scalia, and Kennedy voted to deny.

One interesting (and awful) tidbit from the cert pool memo is that the memowriter noted that the tribal interests weren’t represented in the litigation and that, importantly, Cotton Petroleum hadn’t introduced evidence about the impact of New Mexico’s tax on tribal sovereignty:

“As [New Mexico] and [state] amici explain, this Court’s precedents require a showing of actual impact on tribal interests in self-government before pre-emption will be found, and [Cotton Petroleum] failed to introduce evidence of such impact in this case.” Cert Pool Memo at 7.

As noted above, the impact of New Mexico’s tax on tribal sovereignty was devastating, but since Cotton Petroleum was never in a position to make the argument, it was never developed.

Moreover, in a case denied cert that same Term, Rodney, Dickason v. Revenue Division of New Mexico, the cert pool memowriter (Deborah Malamud of NYU) argued that “the Indian preemption framework serves a substitute for the now-repudiated doctrine that state law has no effect on Indian reservations…. As that doctrine was geographical in nature, perhaps it makes sense that those same limits should apply to its modern substitute.” Cert Pool Memo in Rodney, Dickason at 8-9. But, alas, the Court decided not to adopt such a workable bright-line rule.

More tales from the cert pool memos will follow over the next several weeks.

The Exxon Case, Indian Country, and Maritime Law

Matthew L.M. Fletcher1 Comment

The Supreme Court agreed to hear the Exxon case. The case stems back to one of the worst ecological events in the last few decades, the oil spill resulting from the supertanker Exxon Valdez’s running aground. Exxon is appealing a $2.5 billion punitive damages award. Exxon thought the Court was ripe to reverse large punitive damage awards because of recent cases striking them down in constitutional grounds, but the Court is not going to review the punitive damages on those grounds. Instead, the Court will be looking at Exxon’s maritime law-related claims.

What is interesting in that choice (other than the obvious interest that Alaskan Native and Pacific NW tribes have in the direct impact of the event) is that maritime or admiralty law is a uniquely federal field of law that has very little constitutional grounding. In other words, it is practically an all-federal common law field — just like federal Indian law.

And, as we know from federal Indian law, the Court is not constrained by constitutional and statutory language when applying federal Indian law. My guess is that the Court will strike down the punitive damage award, or else they would have let this award stand.

Chief Justice Roberts & Federal Indian Law

Matthew L.M. Fletcher

Long before John G. Roberts, C.J. became life-tenured, he practiced. And he worked on at least three Indian law-related cases: Alaska v. Native Village of Venetie, Rice v. Cayetano, and (briefly) Roberts v. United States. Also, as part of President Reagan’s Office of Legal Counsel, he vetted several Acts of Congress related to Indian tribes.

Roberts won Venetie, representing the State of Alaska. He lost Rice, representing the State of Hawaii. And the Court denied his petition for cert on behalf of Hollis Roberts (no relation, one presumes) in Roberts v. U.S.

The now semi-notorious brief Roberts filed in Alaska v. Venetie is here: Venetie Petr Brief. It is notorious for the reversal of the “deadliest enemies” language in United States v. Kagama. The Kagama Court wrote that states and state citizens were the deadliest enemies of Indians and Indian tribes, but the Venetie brief (for no real good reason) altered the quote to mean that Indians and Indian tribes were the deadliest enemies of states and state citizens. Here’s my own paper on the archaic notion that states and tribes are “deadliest enemies.”

Hawaii’s brief in Rice v. Cayetano is here: Rice Resp Brief

Roberts’ cert petition in Roberts v. US is here: Roberts v. United States Cert Petn. This one is especially important since Roberts (and Roberts) brought a challenge to Section 465, the fee to trust statute. There is ongoing litigation involving Section 465 that may soon be appealed to the Supreme Court. To some extent, the legal challenge to Section 465 has morphed since the 1999 cert petition, but it is significant that Roberts, C.J. is aware of this kind of case.

Finally, we include the documents Roberts wrote as a member of the OLC. These came out during his Senate confirmation process.

Kickapoo OLC Memo

Reagan Indian Policy OLC Memo

Tribal Tax Status Act OLC Memo

Utah Paiute Act OLC Memo

Zuni OLC Memo

Shoalwater Bay OLC Memo

Las Vegas Paiute OLC Memo

I guess what these memos demonstrate is that young Roberts was a serious conservative and a funny guy (unless you were the subject of the humor).

Talk Announcement: “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law” @ UM Law School

Matthew L.M. Fletcher

Your humble blogger will be giving a talk at the University of Michigan Law School (co-sponsored, I understand, by the U-M NALSA and the Michigan Journal of Race & Law) on November 12, 2007 at 12:20 PM in Room 150 of Hutchins Hall.

My talk will be called, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”

Here’s the blurb I gave the students on this talk:

I have reviewed each of the 144 Indian law-related cert petitions filed in the Supreme Court from the 1986 to 1993 Terms. Tribal interests began losing 75 percent of their cases in the Court starting in 1987, a significantly worse win rate than even convicted criminal petitioners. I argue that the critical factors the Court looks for in deciding whether to grant cert — “circuit splits,” cases of national “importance,” and cases that are not “factbound” — create structural (and yet wholly discretionary) barriers to the vindication of tribal interests in Supreme Court adjudication.

If you want to read the documents I’ve read in this study, check out the Digital Archive of the Papers of Harry A. Blackmun. And bring your docket numbers, because that’s how it’s organized.

Kevin Washburn: A Legal History of Bryan v. Itasca County

Matthew L.M. Fletcher

Kevin Washburn has posted his paper, “The Legacy of Bryan v. Itasca County: How a $147 County Notice Helped Bring Tribes $200 Billion in Gaming Revenue.”

From the abstract:

The Supreme Court’s landmark 1976 decision in Bryan v. Itasca County is known within Indian law academia for the story that Professors Phil Frickey and Bill Eskridge tell about the case: it reflects a dynamic and pragmatic interpretation of a termination-era statute to limit Congressional termination’s harmful legacy during a more enlightened era of tribal self-determination. What is less well-appreciated about the case is that it provided the legal bedrock on which the Indian gaming industry was built. This article explores the genesis of the litigation and traces its path, describing how it came to produce a unanimous Supreme Court opinion of surprising breadth. It also demonstrates that the right to engage in gaming, which ultimately has produced vast tribal economic development and even riches for some tribes, had its roots as much in Indian poverty as in Indian sovereignty.