Supreme Court – Page 98

Native Village of Eyak v. Blank Cert Petition

December 3, 2012Matthew L.M. Fletcher2 Comments

Here:

Question presented:

The Ninth Circuit agreed with the district court’s findings that at the time of first contact with Europeans, the Chugach were a culturally, ethnically and linguistically related people who had made actual and continuous use and occupancy of an area of the Outer Continental Shelf for a long time. The courts also agreed there was no evidence that others used the area, except for the periphery. Based on these showings by the Chugach, did the Ninth Circuit err in concluding that the exclusive use required to establish aboriginal title was defeated by a failure to demonstrate an ability to expel a hypothetical invader, by other groups’ use of the periphery of the Chugach territory, and by the fact that the Chugach villages were politically independent?

Lower court materials here.

Shinnecock Member Files Cert Petition Challenging Conviction for Improper Shellfish Tags

November 28, 2012Matthew L.M. Fletcher

Here is the petition in Smith v. People of the State of New York:

Smith v New York Cert Petition

The question presented:

Whether the statutory bar restricting removal jurisdiction is a separate and distinct removal jurisdiction, and a waivable procedural defect, by the failure to file a motion to remand with the 30 day statutory time limitation provided in 28 U.S.C. § 1447(c)?

Supreme Court Denies Cert in Dram Shop Immunity Action Involving Miccosukee Tribe

November 26, 2012Matthew L.M. Fletcher1 Comment

The order list is here (the reference to Furry is on page 4).

The Furry materials are here.

Furry v. Miccosukee Tribe a “Petition to Watch” in Tomorrow’s Conference

November 19, 2012Matthew L.M. Fletcher2 Comments

Here. Too bad we can’t actually watch the Conference at work.

Briefs here.

New Fletcher Working Paper on Amicus Briefs in the Supreme Court’s Indian Cases

November 19, 2012Matthew L.M. Fletcher

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

November 16, 2012Matthew L.M. Fletcher

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

November 13, 2012November 13, 2012Matthew L.M. Fletcher

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

November 13, 2012Matthew L.M. Fletcher

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!):

DuroVReinaScaliaMemo

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.