Supreme Court

Fletcher on Native America Calling this Friday on Affirmative Action

Matthew L.M. Fletcher

Here. The program description:

Friday, October 26, 2012 – Affirmative Action in Education:
Earlier this month, the U.S. Supreme Court heard arguments on the constitutionality of affirmative action in higher education. This issue is something that has many in Indian Country concerned. With this in mind we ask, is diversity in college admissions a right Native students should be afforded? Can Native students still expect a quality college education if their test scores and academics aren’t measured equally to non-native students from more affluent backgrounds? What will the future look like for Native college hopefuls if the Supreme Court decides for or against? We’ll explore these questions and more as we discuss the Supreme Court, Affirmative Action, and the future of Native College students.

Michigan Files Cert Petition in Dispute over BMIC’s Vanderbilt Casino

Matthew L.M. Fletcher2 Comments

Here is the petition:

Petition for a Writ of Certiorari MI v BMIC

Better pdf here: Michigan v Bay Mills Cert Petition

Questions Presented:

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.

Sixth Circuit materials here.

My earlier views on why this petition isn’t going anywhere are here. I would add now that since Bay Mills, as I understand it, hasn’t re-opened the casino, and since the State filed an amended complaint way back when, there doesn’t seem to be much pressure to grant this particular petition. Also, if this is really an IGRA fight over an allegedly illegal casino, it’s really the federal government’s fight. In fact, NIGC already referred the matter to the federal prosecutors … a while back. Michigan is trumping up an alleged compact violation that might not even exist. There might be a compact violation, or not, but the State in its petition doesn’t even point to which provision in the compact BMIC is violating (maybe they did, but I didn’t see it).

Opposition Briefs in Good Bear v. Cobell Cert Petition

Matthew L.M. Fletcher3 Comments

Here:

Federal Cert Opp in Goodbear

Cobell Cert Opp in Goodbear

Supreme Court Grants Cert in Arizona v. Inter Tribal Council of Arizona (This is really an immigration/election rights case…)

Matthew L.M. Fletcher2 Comments

Here is today’s order list.

Briefs are on SCOTUSblog here.

Supreme Court Partially Vacates and Reverses Judgment Favoring Samish Indian Nation

Matthew L.M. Fletcher1 Comment

Here is today’s order list. From the order:

The petition for a writ of certiorari is granted. The judgment with respect to all matters relating to respondent’s Revenue Sharing Act claim is vacated, and the case is remanded to the United States Court of Appeals for the Federal Circuit with instructions to dismiss that claim as moot. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

Lower court materials here.

LA Times Op/Ed (Lee C. Bollinger and Claude M. Steele) on the Fisher v. University of Texas Case

Matthew L.M. Fletcher

Here.

Adoptive Couple v. Baby Girl Cert Petition (South Carolina ICWA Case)

Matthew L.M. Fletcher1 Comment

Here (we’ll post a pdf of the original when we get it):

Adoptive Couple v Baby Girl Cert Petition

No 12-__ Adoptive Couple v Baby Girl REDACTED

Questions presented:

(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.
Lower court decision here.

Cobell Class Cert Opposition Brief (Craven Petition)

Matthew L.M. Fletcher2 Comments

Here:

Cobell Cert Opp Brief

Furry v. Miccosukee Cert Petition: State Dram Shop Actions and Immunity

Matthew L.M. Fletcher3 Comments

Here:

Furry Cert Petition

Questions presented:

1. Does Justice Brandeis’ opinion in Turner v. United States, 248 U.S. 354 (1919) support the concept of tribal sovereign immunity or should that accidental doctrine, questioned in Kiowa Tribe of Oklahoma v. Manufacturing Technologies, Inc., 523 U.S. 751 (1998), be revised and discarded, at least in the context of tribal alcoholic beverage commercial activities?
2. Do Title 18 U.S.C. § 1161 and Rice v. Rehner, 463 U.S. 713 (1983), exclude tribal alcoholic beverage endeavors from sovereign immunity protection?
3. Does tribal sovereign immunity preclude a suit against an Indian Tribe which has obtained a state liquor license and has operated an alcoholic beverage facility pursuant to that liquor license and in the process has violated state law subjecting a license holder to liability?
Lower court materials here.

“American Indian Legal Scholarship and the Courts” Now Available with Appendices

Matthew L.M. Fletcher

My new paper, “American Indian Legal Scholarship and the Courts,” is now available. I previously posted the appendices, and they are available here.

Here is the abstract:

Is legal scholarship influential on the courts? More particularly, is American Indian legal scholarship influential on the courts? In the 1960s, 1970s, and 1980s, tribal interests enjoyed historic success in the courts. While they didn’t win every case, tribal interests prevailed far more than they ever had prior to these few decades. Since the advent of the Rehnquist and Roberts Courts, however, those successes have once again become few and far between.

American Indian legal scholarship, which rose from virtual nonexistence in the 1950s to significance in the late 1960s and 1970s, appears to have been very influential on the courts during the period of success. Every decade since the 1960s has seen a dramatic increase in the number of law review articles on the subject of American Indian law. Courts cited to an incredible percentage of the Indian law articles published in the 1960s, 1970s, and early 1980s, but that citation pattern has leveled off since the 1980s. The lower courts continue to cite American Indian legal scholarship, but in a more limited manner. In the Supreme Court, Indian law scholarship has all but disappeared.

This short paper, prepared for the Henderson Center’s Fall 2012 Symposium, “Heeding Frickey’s Call: Doing Justice in Indian Country,” presents the data on the citation patterns of American Indian legal scholarship and reviews Professor Frickey’s call as a means of introducing the conference.