Supreme Court – Page 81

Kristen Carpenter and Lorie Graham on Human Rights and Adoptive Couple v. Baby Girl

February 27, 2014Matthew L.M. Fletcher

Kristen Carpenter and Lorie Graham have posted a very compelling and powerful paper about the Supreme Court’s decision in Adoptive Couple v. Baby Girl. It is required reading for anyone interested in the case, and is destined to be the definitive paper on the international human rights aspects of the case.

The article is titled Human Rights to Culture, Family, and Self-Determination: The Case of Adoptive Couple v. Baby Girl. Here is the abstract:

The well-being of indigenous children is a subject of major concern for indigenous peoples and human rights advocates alike. In 2013, the U.S. Supreme Court decided in Adoptive Couple v. Baby Girl that the Indian Child Welfare Act did not prevent the adoption of a Cherokee child by a non-Indian couple. This occurred over the objections of her Cherokee biological father, extended family, and Tribal Nation. After the decision, Baby Girl’s father and the adoptive couple contested the matter in a number of proceedings, none of which considered the child’s best interests as an Indian child. The tribally-appointed attorney for Baby Girl, as well as the National Indian Child Welfare Association and National Congress for American Indians, began examining additional venues for advocacy. Believing that the human rights of Baby Girl, much like those of other similarly situated indigenous children, were being violated in contravention of the United Nations Declaration on Indigenous Peoples Rights, and other instruments of international law, they asked us to bring the matter to the attention of the United Nations Special Rapporteur for Indigenous Peoples Rights (“UNSR”). We prepared a “statement of information” to alert the UNSR of the human rights violations occurring in the case. With the permission of the attorneys and organizations involved, this chapter introduces the Baby Girl case, contextualizes the claims in international human rights law, and then reproduces the statement of information, and portions of the UNSR’s subsequent public statement. It concludes with an update on the Baby Girl case and broader discussion about the potential for using international law and legal forums to protect the human rights of indigenous children.

Sixth Circuit Stay Order in Michigan v. Sault Tribe

February 25, 2014Matthew L.M. Fletcher3 Comments

Here:

CA6 Stay Order

Michigan Stay Motion

Cert Opposition Briefs in Katie John Appeal

February 25, 2014February 26, 2014Matthew L.M. Fletcher

Here are the opposition briefs in Alaska v. Jewell:

Federal Cert Opp Brief

Katie John Cert Opp [A second brief with the appendix: AFN Alaska v Jewell BIO app]

Cert petition here.

Sixth Circuit Stays Sault Ste. Marie Decision

February 24, 2014Matthew L.M. Fletcher

Here.

Two Amicus Briefs Supporting Wolfchild Cert Petition

February 19, 2014Matthew L.M. Fletcher

Here:

Gregory Sisk Amicus

Historic Shingle Springs Miwok Amicus

Cert petitions here.

Native Wholesale Supply v. Wasden (Idaho) Cert Petition

January 17, 2014Matthew L.M. Fletcher

Here:

Native Wholesale Supply v Wasden Cert Petition

1. Whether under circumstances in which a State is admittedly precluded from regulating an Indian it is also precluded from regulating a corporation wholly owned by an Indian and organized under the laws of a federally recognized tribe.

2. Whether, under a State law that purports to give the Attorney General power to “approve” all cigarettes before they may be imported into Idaho, the State of Idaho can prohibit an Indian-owned business on the Coeur d’Alene reservation from importing into that reservation cigarettes that are sold “FOB Seneca Nation” by a company wholly owned by a member of the Seneca Nation and licensed by the Seneca Nation to carry on such trade.

3. Whether the State of Idaho’s cigarette-sale statutes are preempted to the extent that they are enforced in a manner that prohibits Native Wholesale Supply Company (“NWS”) from trading with Warpath Inc. (“Warpath”).

4. Whether the State of Idaho can constitutionally exercise personal jurisdiction over NWS, an Indian-chartered entity located on Seneca Nation of Indians Land, situated within the geographic boundaries of the State of New York, where NWS sells the tobacco products “FOB Seneca Nation” to Warpath, and the products are then transported to Warpath’s place of business on the Coeur d’Alene reservation.

Lower court materials here.

Zephier v. United States & Wolfchild v. United States Cert Petitions

January 14, 2014January 13, 2014Matthew L.M. Fletcher4 Comments

Here:

Wolfchild v US Cert Petition

Zephier v US Cert Petition

Wolfchild questions presented:

1. Whether the court of appeals interpretations of statutes specific to the Mdewakanton Band — 1863 Acts, 1888-1890 Acts and 1980 Act: (a) contradict Tohono O’Odham Nation because the court of appeals failed to appreciate that the U.S. Court of Federal Claims (CFC) is to provide a judicial forum for most non-tort requests for significant monetary relief against the United States; (b) contradict Nevada v. Hicks, because the court of appeals opinions, including the Eighth Circuit opinion in Smith v. Babbitt, essentially refer the Mdewakanton Band’s federal claims to tribal courts which lack jurisdiction; (c) contradict Mitchell I, Mitchell II, White Mountain Apache, and Navajo Nation because the court of appeals misinterpreted statutory trust and other legal obligations and failed to properly apply the money-mandating duty requirement; (d) conflict with the First Circuit opinion in Passamaquoddy Tribe because the court of appeals failed to apply the “plain and unambiguous” requirement to the 1980 Act for the purported termination of the Mdewakanton Band and its statutory property rights; and (e) contradict Carcieri because the court of appeals treated the three non-tribal communities as sovereign historical tribes when they are not.

2. Whether the court of appeals’ interpretation of statutes general to American Indians: (a) contradict Oneida I and Oneida II and their progeny because the court of appeals failed to properly interpret the Indian Nonintercourse Act to require Congressional authorization prior to the purported termination of the Mdewakanton Band’s tribal statutory property rights; (b) contradict Carcieri and the 1934 Indian Reorganization Act (IRA) because the court of appeals deemed the purchased IRA lands to be held exclusively in trust for the three post-1934 non-tribal communities; and (c) misinterpreted the six-year statute of limitations and the Indian Trust Accounting Statute (ITAS) to bar the Mdewakanton Band’s monetary claims.

3. Whether summary judgment should have been granted to petitioners on the pre-1980 and post-1980 statutory fund claims and the statutory land claim.

Zephier questions presented:

I. Whether the Federal Circuit’s 2013 holding that a February 16, 1863 Act of Congress, providing that “the Secretary of Interior is hereby authorized to set apart of the public lands . . . eighty acres in severalty” to loyal Mdewakanton Indian individuals, is “too discretionary to support a viable claim,” thereby conflicts with this Court’s and other precedents holding that power given to public officers in permissive form statutory language, but involving individual property rights calling for its exercise, the language used is “in fact peremptory” and money-mandating?

II. Whether the Panel failed to recognize the trust nature of the February 1863 Act in rejecting Petitioners’ “two basic claims” and thus issued a determination that conflicts with a previous authoritative decision in Wolfchild v. United States, 559 F.3d 1228 (Fed. Cir. 2009), which found that the language of the Act of February 16, 1863, Section 9, ch. 37, 12 Stat. 652, “created an inheritable beneficial interest in the recipients of any land conveyed under the statute . . . [and] explicitly created a trust relationship” with the Federal Government?

III. Whether the Secretary of Interior’s 1865 actions “invoking the land-allocating authority of the two 1863 Acts” created an equitable estoppel against the Government, conflicting with the 2013 Panel’s conclusion that “those 1865 actions . . . cannot support a timely claim for relief?”

IV. Whether the Panel erred in failing to find an actionable violation of the 1851 and 1858 treaties between the Government and the loyal Mdewakanton by the Government’s failure to fully implement Section 9 of the Act of February 16, 1863?

Lower court materials here.