Supreme Court Denies Cert in All Indian Law Cases (No News on Onondaga)

Here.

The denial in Nebraska v. Elise M. is a big deal. The hold on Onondaga is interesting….

See our preview of the long conference here.

 

No Indian Law Grants from Supreme Court’s Long Conference

Here. But we won’t know for another several days whether the Indian law cases have been denied, held for a CVSG or other reason, or otherwise.

For TT’s analysis of the pending petitions, go here.

The October 2013 Term Long Conference: Indian Law Edition

There are a few Indian law petitions scheduled for disposition at the so-called long conference (which is today), where the Supreme Court Justices meet for the first time of the new Term to address cert petitions pending over the break. Thanks to SCOTUSblog for making links to the petitions easy.

SCOTUSblog’s Petitions to Watch lists these petitions:

Nebraska v. Elise M — Another ICWA case, this time involving the transfer of an ICWA case to tribal court. Wonder how, or if, the absolutely horrifying aftermath of the Adoptive Couple v. Baby Girl case will affect the decision on whether to review this matter.

Ring v. United States — not really an Indian law petition but does involve the challenge to the conviction of a former associate of Jack Abramoff.

Other petitions:

James L. v. Devin H. — a pro se ICWA petition. No chance for a grant here. Respondents waived the right to file an objection.

Matheson v. Washington Dept. of Revenue — No chance for a grant here, either. Part of a long-standing dispute between Indian smokeshop retailers and the state and the tribe. Respondents waived the right to file an objection.

Native Village of Eyak v. Pritzker — troubling case, with the CA9 apparently applying the wrong standard, or applying it it incorrectly. Two factors (three?) make the petition all but doomed — it’s simple error correction, which the Court shys away from, and the United States is opposing the petition. The third of course being tribal petitions are almost never granted (less than 1 percent).

Onondaga Nation v. New York — MSU’s ILPC participated in an amicus brief supportive of the Onondaga Nation at the CA2. The SCT has already denied similar petitions in land claims involving the Cayuga and Oneida Indian Nations. By the time the Onondaga land claims went to the CA2, Haudenosaunee land claims were being summarily dismissed as a matter of law. In spite of a whole class of claims being dismissed without any attention to the arguments about whether the state’s defenses were sufficient to justify dismissal, it seems pretty clear the Court will deny this one as well. If anything, however, the Court should be concerned that an American court has held that a class of claims that meets two criteria — (1) the plaintiffs are Indian tribes and (2) the claims are “disruptive” — are being summarily dismissed on their face. Fingers crossed for a summary reversal and remand….

Tonasket v. Sargent — Very little chance of a grant, as both petitioner and respondent are tribal. An intra-tribal dispute, rarely heard before the Supreme Court. However, there is an immunity issue, and the Court seems interested in those cases. Small, tiny possibility of a CVSG.

SCOTUSBlog Petition of the Day: Nebraska v. Elise M.

Here:

The petition of the day is:

12-1278

Issue: (1) Whether the Indian Child Welfare Act, 25 U.S.C. §§ 1901-63, prohibits a state court from considering the “best interests of the child” when determining whether “good cause” exists to defy the transfer of an ongoing child welfare case; and (2) whether ICWA requires a state court to treat a motion to terminate parental rights as a “new proceeding” for the purposes of determining whether “good cause” exists to defy the transfer of an ongoing child welfare case.

Possibly a candidate for a CVSG.

New Scholarship on Carcieri, Patchak, and the HEARTH Act Regulations

Noah Nehemiah Gillespie has published “Preserving Trust: Overruling Carcieri and Patchak While Respecting the Takings Clause” (PDF) in the George Washington Law Review.

Here is the abstract:

The potential benefit of new Bureau of Indian Affairs (“BIA”) regulations for development on Native land has been overshadowed by two recent Supreme Court decisions—Carcieri v. Salazar and Match-E-Be-Nash-She- Wish Band of Pottawatomi Indians v. Patchak—which cast doubt on the title to Native land and dramatically expand the rights of nearby owners to sue by challenging Native use of that land under the Administrative Procedure Act (“APA”). Legislation that would amend the statutes the Court interpreted in Carcieri and Patchak could remedy these ill effects but would pose a new problem: the taking of a vested cause of action without just compensation.

This Essay proposes that Congress enact appropriate legislation that both overrules the Court’s interpretations of the relevant statutes and permits takings suits in place of suits under the APA, so that Native land remains securely under Native control. In addition, the BIA must harness the agency deference it deserves to set Native sovereignty at the center of federal Indian policy.

Michigan v. Bay Mills Indian Community Oral Argument Set for December 2

Here.

NCAI Letter to National Indian Gaming Commission re: Bay Mills Vanderbilt Casino

Here:

NCAI Letter to NIGC re Michigan v Bay Mills

An excerpt:

We have reviewed the NIGC legal opinion dated December 10, 2010 asserting that NIGC has no jurisdiction over the disputed Vanderbilt casino because it is not on Indian lands. We respectfully request that you reconsider that legal opinion in order to avoid the “irony” and unnecessary legal dilemma that the Supreme Court intends to resolve. Although the NIGC authority to approve tribal gaming ordinances may be limited to Indian country (AT&T v. Coeur d’Alene Tribe, 283 F. 3d 1156 (9th Cir., 2002)), IGRA is structured to authorize the NIGC to take final agency action regarding Indian gaming operating outside of Indian country. Bay Mills maintains that it is operating the Vanderbilt facility pursuant to a NIGC approved tribal ordinance within the authority of IGRA. IGRA authority lies clearly within the NIGC to assess the validity of Bay Mills’ claim.

The NIGC disclaimed jurisdiction over the Vanderbilt casino here. See also, Interior’s letter.

17 State AGs File Amicus Briefs Supporting Michigan in Bay Mills Case

Here:

Amicus Brief of Oklahoma in support of Petititoner

Amicus Brief of Alabama, et al., in support of Petitioner — 16 states

 

Tenth Circuit Abates Oklahoma v. Hobia until Supreme Court Decides Michigan v. Bay Mills — Updated

Here:

2013.09.05 – Order Abating

UPDATE (9/11/13) — Supplemental Briefs are here:

Kialegee Supplemental Brief

Oklahoma Supplemental Brief

Briefs are here.

Lower court materials here.

Dreveskracht Commentary on Adoptive Couple v. Baby Girl

Here. An excerpt:

The Supreme Court’s decision in Adoptive Couple v. Baby Girl is most certainly a blow to Indian sovereignty by way of an assault on core notions of Indian family and tribal identity.  Yet what is even more disturbing is how the “Baby Veronica” ruling so vividly highlights the Roberts Court’s deep investment in white supremacy, capitalism, patriarchy, heterosexism, and a coercive binary gender system.  Adoptive Couple is about far more than the rights of adoptive parents.  The decision should serve as a warning to all marginalized groups such as Indians, ethnic minorities, the lower class, or the LGBT community: If given the opportunity the High Court will construe legislation to serve its own institutionalized interests, in spite of the law’s intent.