The order list is here (the reference to Furry is on page 4).
The Furry materials are here.
Supreme Court
Furry v. Miccosukee Tribe a “Petition to Watch” in Tomorrow’s Conference
New Fletcher Working Paper on Amicus Briefs in the Supreme Court’s Indian Cases
I have posted a fairly rough draft of a new paper titled, “The Utility of Amicus Briefs in the Supreme Court’s Indian Cases,” on SSRN. Comments welcome.
Here is the abstract:
Four times in the past 15 years, arguments or information raised by amici before the Supreme Court have had dramatic impacts on the Court’s decision making process in cases involving federal Indian law. In two cases involving government contracting, amicus briefs filed by the United States Chamber of Commerce supporting tribal interests played important roles in pointing out the impact the Court’s decision would have on defense and other government contractors. In another case, an amicus railroad company alleged that the procedures in one tribal court were stacked against nonmembers, apparently causing the Court to reconsider its views on tribal civil jurisdiction. In a fourth case, an amicus resuscitated a line of argument long thought to be retired from the field (in fact, none of the parties briefed the argument) and persuaded the Court to decide a case on that basis. What about these briefs, as opposed to the hundreds of other Supreme Court amicus briefs filed in the Court’s Indian cases, served to influence the Court so heavily? This short paper hopes to sort out a few general guidelines for amicus brief writers in federal Indian law cases by reviewing a series of amicus briefs and how we know the Court deals with them.
Madison County v. Oneida Indian Nation Cert Petition
As expected, Madison and Oneida Counties filed a cert petition over the Second Circuit’s affirmation of the Oneida reservation boundaries. Here:
11-12-12 Madison v. NY Oneida Cert Petition
Question presented:
Does the 300,000-acre ancient Oneida reservation in New York still exist, neither disestablished nor diminished, despite (1) the federal government’s actions taken in furtherance of disestablishment (including, but not limited to, the 1838 Treaty of Buffalo Creek); (2) this Court’s holding in City of Sherrill v. Oneida Indian Nation of New York, 544 U.S. 197, 214 (2005) (“Sherrill”) that the Oneida Indian Nation of New York cannot exercise sovereignty over lands it purchases in the ancient reservation area; and (3) this Court’s finding in that case that land in the ancient reservation area has not been treated as an Indian reservation by the federal, state or local governments for nearly two centuries?
Lower court materials here.
Supreme Court Decides Question involving Federal Immunity and the Little Tucker Act
Here is today’s opinion in United States v. Bormes.
An excerpt from Justice Scalia’s unanimous opinion:
[The Federal Circuit] distorted our case law in applying to FCRA the immunity-waiver standard we expressed in White Mountain Apache Tribe, 537 U. S., at 472: whether the statute “‘can fairly be interpreted as mandating compensation by the Federal Government for the damage sustained.’ ” 626 F. 3d, at 578. That is the test for determining whether a statute that imposes an obligation but does not provide the elements of a cause of action qualifies for suit under the Tucker Act—more specifically, whether the failure to perform an obligation undoubtedly imposed on the Federal Government creates a right to monetary relief. See White Mountain Apache Tribe, supra; Mitchell II, 463 U. S. 206. That test is not relevant when a “mandate of compensation” is contained in a statute that provides a detailed judicial remedy against those who are subject to its requirements. FCRA is such a statute. By using the “fair interpretation” test to determine whether FCRA’s civil liability provisions apply to the United States, the Federal Circuit directed the test to a purpose for which it was not designed and leapfrogged the threshold concern that the Tucker Act cannot be superimposed on an existing remedial scheme.
Scalia Memorandum to Brennan in Duro v. Reina
In the spirit of posting old documents (see our Nixon post yesterday), we are delighted to present a find from the late David Getches’ papers (many, many thanks to Jane at the Colorado Law Library for hunting for this and sending it along!):
Here is an image of the memo, which David made a centerpiece of his deeply influential California Law Review article, “Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law .” Jane believes David or his RA made the marks on the memo.
Miccosukee Tribe Brief in Opposition to Furry Cert Petition (Tribal Immunity and State Law Dram Shop Actions)
Harvest Institute Freedmen Cert Petition (Challenge to Cobell Settlement)
Here is the petition in Harvest Freedmen Institute v. United States:
Harvest Inst. Freedmen Cert Petition
Lower court materials here.
Supreme Court 2012 Early Term Update
There are still no grants this Term (with the quasi-exception of the Samish case) but there have been a flurry of petitions in the last few weeks that have a small to middling chance of being granted. They are presented here in no special order.
Adoptive Couple v. Baby Girl (No. 12-399)
This is that ICWA case decided by the South Carolina Supreme Court in which the non-Indian adoptive parents (the petitioners) hired a PR company to make ICWA, the Cherokee father, and the South Carolina Supreme Court look bad — Dr. Phil took the bait. No split, no issue of national importance (unless Paul Clement’s retention and Dr. Phil make a case nationally important — it may, I suppose), ICWA’s plain language supports the S.C. court’s decision — I don’t see much chance of this case being granted. I might expect a CVSG, however, since it’s a federal statute in question.
Petition and GAL amicus. My commentary on the petition is here.
Questions:
(1) Whether a non-custodial parent can invoke ICWA to block an adoption voluntarily and lawfully initiated by a non-Indian parent under state law. (2) Whether ICWA defines “parent” in 25 U.S.C. § 1903(9) to include an unwed biological father who has not complied with state law rules to attain legal status as a parent.
Young v. Fitzpatrick (No.11-1485) — CVSG (October 2012)
The Court has asked the SG’s office for its views (a CVSG). It doesn’t appear to be the kind of case that recurs, although with expanding tribal governance capacity it might, and appears to involve the interpretation of a single, relatively narrow treaty provision. There certainly isn’t a split now, and I doubt there ever will be. Seems like a classic case of leave it be and see what happens next, with an expectation that if these issues recur, the Court will have the benefit of other lower court decisions to review.
The questions:
(1) Whether police officers, employed by the Puyallup Indian Tribe, but trained, certified, and cross-commissioned by the state of Washington, and armed, equipped, and provisioned by the United States, are subject to the Constitution, U.S. civil rights laws, and state tort law; (2) whether the Shelter or Conceal Clause of the Treaty of Medicine Creek, and additional sources of federal and state law, preempts any claims of qualified immunity by individual Puyallup tribal police officer defendants in a suit for violation of the Constitution, U.S. civil rights laws, and state tort law.
SCOTUSblog has the briefs so far.
Michigan v. Bay Mills Indian Community (No. 12-515)
This is the effort by the State of Michigan to stop the Vanderbilt casino opened on fee land by the Bay Mills Indian Community. Little Traverse Bay Bands of Odawa Indians had been a partner in the effort (BMIC had opened its casino right on LTBB’s doorstep and cost them about a hundred grand or more a month in revenues), but apparently doesn’t want to partner in this fairly anti-tribal petition. I opined on the alleged split here and here — I conclude that any split is probably illusory. Also, the casino is closed, and the State has filed an amended complaint that might cure the jurisdictional deficiencies below, rendering the petition irrelevant. Still, there’s a decent chance for a CVSG, since it’s a federal statute at issue (and frankly the lack of an adequate federal response in the first place).
Questions:
1. Whether a federal court has jurisdiction to enjoin activity that violates IGRA but takes place outside of Indian lands. 2. Whether tribal sovereign immunity bars a state from suing in federal court to enjoin a tribe from violating IGRA outside Indian lands.
Cobell Petitions (Craven v. Cobell & Good Bear v. Cobell) (Nos. 12-234 & 12-355) — UPDATE — cert denied today in Craven petition.
Guardian ad Litem Brief in Support of Cert Petition in Adoptive Couple v. Baby Girl
Here:
GAL Brief in Support of Petition
A direct challenge to the constitutionality of the Indian Child Welfare Act, filed by Paul Clement. No circuit split, no split of authority in the state courts, arguments never raised below — an emotional plea to an unemotional Court.
Turtle Talk 
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