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.
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.
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.
The petition is here.
Tonasket v Sargent Cert Petition
1. Whether Indian tribal immunity from suit allows the Indian tribe, a price fixing competitor, to be immune from federal anti-trust laws?
2. Whether the officials of an Indian tribe that include the tribe’s tobacco tax administrator, acting in violation of federal law, can be protected by tribal immunity when prospective relief is sought?
Lower court materials here.
Here are the materials in Tonasket v. Sargent:
Lower court materials here.
The Ninth Circuit recently decided a related appeal here.
Here are the materials in Tonasket v. Sargent (W.D. Wash.):