Supreme Court

Alex Skibine on the Last 30 Years of Indian Law in the Supreme Court

Matthew L.M. Fletcher1 Comment

Alexander Tallchief Skibine has posted “The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?” He presented this paper at the PLSI 50th Anniversary.

Here is the abstract:

Since 1831, Indian nations have been viewed as Domestic Dependent Nations located within the geographical boundaries of the United States. Although Chief Justice John Marshall acknowledged that Indian nations had a certain amount of sovereignty, the exact extent of such sovereignty as well as the place of tribes within the federal system has remained ill-defined. This Article examines what has been the role of the Supreme Court in integrating Indian nations as the third Sovereign within our federalist system. The Article accomplishes this task by examining the Court’s Indian law record in the last 30 years. The comprehensive survey of Indian law decisions indicates that the Court has had difficulties upholding the federal policy of respecting tribal sovereignty and encouraging tribal self-government. After categorizing the cases between victories and losses, the Article divides the cases into four categories: Federal common law, statutory interpretation, constitutional law, and procedural law. The cases are then further divided into four general areas: 1. Tribal Sovereign/Political rights, 2. Economic Rights (treaty/property rights), 3. Rights derived from the trust relationship, and 4. Cultural/Religious rights.

The Article next focuses on the interaction between the Court and Congress concerning the incorporation of tribes as the third sovereign within the federalist system. This Part first evaluates Congress’s response to Supreme Court cases and then looks at the Court’s response to congressional legislation. The Article ends by arguing that through its disproportionate use of federal common law in its Indian law decisions, the Court has not attempted to reach a consensus with Congress about the place of Indian nations within our federalism. Instead, it has aimed to establish what the Court perceives should be the proper equilibrium between tribal interests on one hand and the non-Indian/state interests on the other.

ProPublica: “It’s a Fact: Supreme Court Errors Aren’t Hard to Find”

Matthew L.M. Fletcher

Here.

Cert Opposition Briefs in Coachella v. Agua Caliente

Matthew L.M. Fletcher

Here:

Agua Caliente Cert Opp

US Cert Opp

Cert petition here.

Herrera v. Wyoming Cert Petition

Matthew L.M. Fletcher

Here:

2017-10-05 Herrera Cert Petition

Question presented:

Whether Wyoming’s admission to the Union or the establishment of the Bighorn National Forest abrogated the Crow Tribe of Indians’ 1868 federal treaty right to hunt on the “unoccupied lands of the United States,” thereby permitting the present-day criminal conviction of a Crow member who engaged in subsistence hunting for his family.

 

The Onion: “Supreme Court Justices Gather In Chambers To Receive Latest Mission From Large Talking Head Of Justice John Marshall”

Matthew L.M. Fletcher

Here.

An excerpt, quoting Chief Justice Marshall: “Remember: The fate of federal shipping regulation depends upon you!”

Kansas v. NIGC Cert Petition

Matthew L.M. Fletcher1 Comment

Here:

Cert Petition

Question presented:

Whether NIGC legal opinions that determine whether Indian lands are eligible for gaming under IGRA are reviewable final agency actions.

Lower court materials here.

SCOTUS Asks for Views of Solicitor General in Cougar Den Case; Cert Denied in Petitions involving Poarch Band Creek and Ute Indian Tribe

Matthew L.M. Fletcher

Here is the order list.

Here are the materials in Washington State Dept. of Licensing v. Cougar Den Inc.

Here are the materials in Hackford v. Utah. He didn’t post Williams v. Poarch Band because it was a pro se petition.

Window Rock Unified School District v. Reeves (Nez) Cert Petition

Matthew L.M. Fletcher

Here:

Cert Petition 

Question presented:

Whether a tribal court has jurisdiction to adjudicate employment claims by Arizona school district employees against their Arizona school district employer that operates on the Navajo reservation pursuant to a state constitutional mandate to provide a general and uniform public education to all Arizona children.

Lower court materials here.

Update: Arizona Amicus Brief [notably, no other state signed on with Arizona]

Tavares v. Whitehouse Cert Petition (United Auburn Indian Community Banishment)

Matthew L.M. Fletcher1 Comment

Here:

Cert Petition

Question presented:

This case presents a question that divides the circuits: Should the “detention” requirement for habeas review under the ICRA be construed “more narrowly than” the “custody” showing required under other federal habeas statutes?

Lower court materials here.

UPDATE (10/27/17): Amicus Brief

Brief in Opposition

Reply

Cert Stage Filings In S.S. v. CRIT (ICWA Case)

Kate Fort

This is the cert petition from the Arizona Court of Appeals decision applying ICWA to step-parent or third party adoptions, where Dad attempted to terminate Mom’s rights so Step-Mom could adopt children.

Cert petition filed by the Goldwater Institute purportedly on behalf of the children.

Amicus in Support of the Cert Petition filed by the Pacific Legal Foundation

Brief in Opposition filed by the Colorado River Indian Tribes

Goldwater Reply