Supreme Court

An excerpt:

I could not have been more wrong. The Justices who spoke during yesterday morning’s argument were unremittingly dubious. It is not an exaggeration to say that there was not one comment from the bench during the entire argument that suggested any predilection, disposition, or expectation of a vote for the tribe. Although individual Justices offered a variety of other reasons to reject the tribe’s position, two general themes dominated the Justices’ shared expressions of skepticism.

Nebraska v. Parker Oral Argument Scheduled for January 20, 2016

December 2, 2015Matthew L.M. Fletcher

Here is the Supreme Court’s January sitting schedule.

Nebraska v. Parker briefs and materials are here.

Oral Argument Transcript in Menominee Indian Tribe v. United States

December 2, 2015Matthew L.M. Fletcher

Here.

Briefs and materials are here.

Ed Gehres Preview of the Dollar General Argument

December 1, 2015Matthew L.M. Fletcher

Here is “Argument preview: The future of tribal courts — the power to adjudicate civil torts involving non-Indians,” on SCOTUSblog.

Dollar General briefs and other materials are here.

United States v. Bryant Cert Stage Briefs

November 25, 2015Matthew L.M. Fletcher1 Comment

Here:

Cert Petition

NCAI Amicus Brief in Support

Opposition Brief

US Cert Stage Reply

Lower court materials here (en banc), and here (panel).

Zepeda v. United States Cert Petition

November 24, 2015Matthew L.M. Fletcher1 Comment

Here:

Zepeda Cert Petition

Questions presented:

The Indian Major Crimes Act, 18 U.S.C. § 1153, makes it a federal crime for an “Indian” to commit any one of thirteen enumerated acts in “Indian country.” In this case, the en banc Ninth Circuit held that an element of the offense in prosecutions under this statute is proof that the defendant has “Indian blood,” whether or not that blood tie is to a federally recognized tribe. The question presented is:

Whether, as construed by the Ninth Circuit, Section 1153 impermissibly discriminates on the basis of race.

Opinion here. En banc materials here, here, and here. Panel materials and other materials here, here, and here.

Supreme Court Cert Petition in Two Shields v. Wilkinson

November 23, 2015Matthew L.M. Fletcher

Here:

Two Shields Cert Petition

ILTF Amicus Brief in Support of Petition

Law Profs Amicus Brief in Support of Petition

Questions presented:

In Temple v. Synthes Corp., 498 U.S. 5 (1990) (per curiam), this Court unanimously held that joint tortfeasors are not required parties under Rule 19(a) of the Federal Rules of Civil Procedure because “[i]t has long been the rule that it is not necessary for all joint tortfeasors to be named as defendants in a single lawsuit.” Id. at 7. Six circuits have recognized the rule that joint wrongdoers are not required parties under Rule 19(a). Three circuits now have followed the opposite rule in holding that, in some circumstances, a joint tortfeasor is a required party, while case law in the Seventh Circuit is conflicted. The Eighth Circuit below followed the minority line of the circuit split to affirm the district court’s dismissal of the action under Rule 19 for failure to join the United States.

The question presented is: Does Rule 19 incorporate the common law rule that joint tortfeasors are not required parties?

Lower court materials here.

Supreme Court Petition Involving NAGPRA, Rule 19, and Tribal Immunity

November 23, 2015January 4, 2016Matthew L.M. Fletcher1 Comment

Here is the petition in White v. Regents of the University of California:

White Cert Petition

Questions presented:

The Native American Graves Protection and Repatriation Act (NAGPRA), which governs repatriation of human remains to Native American tribes, contains an enforcement provision that states, “The United States district courts shall have jurisdiction over any action brought by any person alleging a violation of this chapter and shall have the authority to issue such orders as may be necessary to enforce the provisions of this chapter.” 25 U.S.C. § 3013. Over a strong dissent, a divided Ninth Circuit panel held that a party can prevent judicial review of controversial repatriation decisions by claiming a tribe is a “required party” under Rule 19 of the Federal Rules of Civil Procedure, if the tribe invokes tribal immunity. The questions presented are:

1. Whether Rule 19 of the Federal Rules of Civil Procedure mandates that a district court dismiss any case in which a Native American tribe with immunity is deemed to be a “required party.”

2. Whether tribal immunity extends to cases where Rule 19 is the only basis for adding a tribe, no relief against the tribe is sought, and no other forum can issue a binding order on the dispute; and if so, whether Congress abrogated tribal immunity as a defense to claims arising under NAGPRA.

Lower court materials here.

UPDATE (1/4/16): Anthropologists Amicus Brief