Supreme Court

An excerpt, and a little horn tooting:

The most telling argument for the government is the recitation (in an amicus brief filed by a group of law professors) of the dozens of statutes Congress has adopted through the centuries resolving Indian land disputes and dealing high-handedly with Indian lands. It is notable that Bank Markazi emphasized Congress’ supreme authority over foreign affairs in its rejection of the Klein claim in that case. Congress’ plenary authority to regulate and protect Indian tribes leaves room for a similar resolution of this case without explicitly rejecting the Klein rule. Bank Markazi of course said nothing about Congress’s power over Indian affairs, so that result wouldn’t really follow from Bank Markazi. It would, though, afford the justices a way to decide the case narrowly, which seems to have been their goal in these cases. The key thing to watch for in the argument will be any sense that any of the members of the Bank Markazi majority show a willingness to treat this case differently than they did that one.

You can read that amicus brief here, along with the rest of the briefs

Cert Stage Briefs in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians

November 6, 2017Matthew L.M. Fletcher1 Comment

Here:

Coachella Cert Petition

States Amicus Brief

Agua Caliente Cert Opp

US Cert Opp

Coachella Reply

Desert Water Agency Reply

Agua Caliente Supplemental Brief

Supreme Court Declines to Take S.S. v. CRIT (ICWA case)

October 30, 2017Kate Fort

Here is the order.

Here are the documents.

Remember, now in your ICWA briefs you can add that cert. denied signal if you like.

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

October 21, 2017Matthew 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”

October 17, 2017Matthew L.M. Fletcher

Here.

Cert Opposition Briefs in Coachella v. Agua Caliente

October 16, 2017October 16, 2017Matthew L.M. Fletcher

Here:

Agua Caliente Cert Opp

US Cert Opp

Cert petition here.

Herrera v. Wyoming Cert Petition

October 11, 2017October 11, 2017Matthew 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.