Please Join the Tribal Supreme Court Project for the Webinar, “Indian Country, the Supreme Court, and the Long Conference” – Monday, September 25, 2017 at 2:00 p.m. Eastern
On September 25, the United States Supreme Court will hold its “long conference” where the justices consider all of the petitions for certiorari that have gathered during the summer recess. This effort will set much of the docket for the coming term. There are a number of petitions on matters in federal Indian law.
The Tribal Supreme Court Project will hold a webinar on September 25 at 2:00 p.m. (Eastern) to review these pending certiorari petitions and discuss the importance of the certiorari process.
The webinar will:
Provide an overview of how the certiorari process works;
Review both the granted and pending cert cases that affect issues in federal Indian law, with brief discussions by the attorneys representing tribal governments; and
Review the principles of the Tribal Supreme Court Project and discuss how tribes can work together to improve our odds of success before the United States Supreme Court.
You can register: here
You can find a list of all the pending cert petitions: here
For additional information please contact NCAI General Counsel John Dossett at firstname.lastname@example.org or NARF Senior Staff Attorney Joel Williams at email@example.com.
Now for the other half of the bracket.
Category 3 — People and Parties
Notably, this is an all-woman category semifinal. Damn right.
#1 Hon. Diane Humetewa v. #4 Sarah Deer
Judge Humetewa knocks off Bill Wood with 74 percent of the vote. Bill.I.Am’s Backers made it closer than I predicted. Sarah Deer keeps rolling, taking down the assistant secretary with 62 percent of the vote.
#2 Justice Sonia Sotomayor v. #11 Structuring Sovereignty
Justice Sotomayor wins the battle of New York City with 69 percent of the vote. The Structuring Sovereignty team keeps rolling with 58 percent of the vote.
Category 4 — Other
#1 1491s v. #5 Cohen Handbook
It appears the number of people who reject NFL racism outnumbers the Cobell class pool; I’d say we have a victory of humor over angst. And it wasn’t close, as the 1491s win 61 percent of the vote.
In the other matchup, Cohen outran Ma’iingan, which is saying something.
This semifinal reminds me of the theme song to Pinky and the Brain — one is a genius, the other’s insane. But which is which?
#10 Tribal In-House Counsel Assn. v. #6 Carcieri Challengers
In a massive upset, upstart TICA knocks of the Supreme Court project with 65 percent of the vote. No, I’m serious.
This sets up a huge round-of-16 matchup between TICA and the Carcieri beneficiaries In other words, will principle defeat market share?
Now we move onto the Category 4 hurricane, groups.
#1 1491s v. #9 Cobell settlement beneficiaries
The 1491s love Jim Thorpe (I think) but not his captor, winning with 93 percent of the vote. Potheads didn’t get out of bed yesterday, so the Cobell settlement beneficiaries had an easy time garnering 73 percent of the vote.
I guess I forget, being in Michigan, that Cobell’s billions are pretty influential. This will be an interesting match-up. The 1491s better hope the beneficiaries aren’t out there buying votes.
#4 Gray wolves v. #5 Cohen Handbook
Ma’iingan feasted on the Senate Committee on Indian Affairs, with 63 percent of the vote. The entire state of New Mexico was no match for the Cohen Handbook leviathan, barely netting 29 percent of the vote.
Are the law profs hunters? Or will the wolves outthink them? Whozit gonna be?
#2 Tribal Supreme Court v.#10 Tribal In-House Counsel Association
TLPI nearly pulls off the largest upset of the tournament by defeating the Supreme Court Project but fades late, garnering only 44 percent of the vote. The young upstart TICA wins over NABA by one vote!
#3 Law Reviews on Adoptive Couple v.#6 Carcieri challengers
Well, sheer numbers mean something, plus an extra year to deliberate. Adoptive Couple defeats Bay Mills with 62 percent of the vote. Controversy reigns in the Carcieri v. payday lending crowd, but Carcieri must scare (or excite) voters more, winning with 59 percent of the vote.
Last one for the day!
Still on category 4, groups.
# 2 Tribal Supreme Court Project
They’ve need a win, and Bay Mills was a biggie! While they were unable to persuade SCOTUS not to take the case in the first (even the SG failed there), and they were unable to persuade the tribe not to bring this case in the first place, but that said, they did help tribal interests avoid problems in a lot of other cases (here, here, here, here, and here). Actually, I have no idea if they helped or not but we’ll give them some credit anyway.
# 15 Tribal Law and Policy Institute
Always been a big fan of Jerry Gardner and his crew. One of the funniest men around. Did amazing work on the Attorney General’s Advisory Committee on American Indian and Alaska Native Children Exposed to Violence Report this year.
#7 Native American Bar Association
NABA will be releasing a report arising out of a survey that over 500 Indian lawyers completed this year, so maybe this posting is a year early.
#10 Tribal In-House Counsel Association
#3 Authors of law review articles on Adoptive Couple v. Baby Girl
#14 Authors of law review articles on Michigan v. Bay Mills Indian Community
# 6 Carcieri challengers
The people, groups, tribes, and states and state subdivisions that want to use a poorly-reasoned Supreme Court decision to stop Indian gaming at all costs are legion. Samples here, here, here, here, here, here, and elsewhere (just type Carcieri into TT’s search engine). Interior has opined about it here.
# 11 Tribal sovereign lenders
The NYTs’ Adam Liptak published a fairly scathing article on the so-called “Supreme Court Bar” — the specialists that argue more than 50 percent of all Supreme Court cases now decided. It’s worth reviewing this article, especially in light of the rise of the Tribal Supreme Court Project, which has a goal of recruiting specialists to argue Indian law cases (as well as brief the merits briefs and at least some of the amicus briefs).
Given the NYTs article, which suggests that some (many?) of the Supreme Court Bar members are more interested in self-gratification than winning a case (and notes that Chief Justice Roberts once made some very disparaging remarks about them ten years ago), have tribal interests been prejudiced by the Tribal Supreme Court Project’s efforts to utilize these lawyers? Has there been any effect at all?
A few decades ago, law prof Mark Galanter argued that “repeat players” [corrected link] (“the haves”) have distinct and significant advantages over one-timers. While he didn’t emphasize the Supreme Court’s cases (or individual attorneys), his theory seems to have significant resonance in this area. It would make sense that entities that have frequently appeared in the Supreme Court would have advantages over a party that will be there once and never again. At our conference last weekend, Douglas Laycock indicated that many organizations that appear frequently as amici in the Court’s religious freedom cases are very good at organizing amici strategies, indicating that these repeat amici have advantages, too.
It would make sense that lawyers that appear frequently before the Supreme Court would have some advantage as well, especially since those lawyers likely to be retained to argue multiple cases are usually former Supreme Court clerks, current or former lawyers with the Office of Solicitor General, or otherwise exceptional appellate litigators. These factors were enough to persuade the big thinkers in the Tribal Supreme Court Project (circa 2001) to pursue a strategy of recruiting and retaining the Supreme Court Bar in future.
Our sense is that the jury’s still out. We don’t know yet whether the Supreme Court Bar makes a difference, in part because it took nearly five years to persuade the tribal clients to retain the Supreme Court Bar.
Indians try to keep cases away from high court
March 29, 2010
The Supreme Court has not granted review of any Indian law cases in the current term, but you won’t hear complaints from the Tribal Supreme Court Project.
Most lawyers work hard to keep their lower court victories out of the Supreme Court, but sometimes, fearing hostile justices, they look to avoid the high court even when they have lost.
That’s the position in which the tribal project, a joint venture of National Congress of American Indians and the Native American Rights Fund, finds itself today as it painfully considers its zero-for-five record before the Roberts Court.
“We view this Court as not favorable on our issues,” explained Richard Guest, senior staff attorney at the Native American Rights Fund.
Last term, recalled Guest, the justices granted review in three Indian law cases. “We had prevailed in the lower courts in all three and then lost all three in the Supreme Court,” he said. “We did a little bit better than some folks — environmentalists lost five cases which they had won in the lower courts — but we are all batting zero.”
The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and was formed in 2001 in response to a series of negative decisions affecting tribal sovereignty in the mid-1990s, according to Guest.
“We had a winning percentage from 2001 to 2005 but now we’re back to a situation where we are zero for five,” he said.
There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States.
“If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases,” said Guest.
His concern gets some support from a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: “Factbound and Splitless: Certiorari and Indian Law.” From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases decided by the Supreme Court. But since Cabazon, tribal interests have lost more than 75 percent of their cases.
Fletcher, who studied more than 160 cert petitions filed between 1986 and 1994, concluded that the Court’s certiorari process itself is a barrier to justice for tribes and individual Indians. Cert pool memos by the Court’s law clerks showed, he reported, that clerks overstate the merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.
“Tribal petitions, often involving the interpretation of Indian treaties or complicated and narrow common law questions of federal Indian law, are readily deemed ‘factbound’ and ‘splitless,'” explained Fletcher. “Conversely, the cert pool values and perhaps better understands the interests of state and state agency petitions, as well as the way the pool’s audience (the Court) understands and values the interests of states. Thus, the pool’s recommendations favor states and state agencies far more. The result, frankly, is that tribal petitions on a question will almost never be favored, whereas state petitions on the same question will often be favored.”
Fletcher concluded, “While the admonition that tribal interests should do their very best to avoid the Supreme Court is not new, the findings of this study also demonstrate with increased force and clarity that Supreme Court adjudication is an extraordinarily hazardous process for tribal interests.”
With three Indian law cases already on the docket, this year’s U.S. Supreme Court term could get see the addition of some high-profile religious rights disputes.
The cases are being watched closely in Indian Country, whose efforts to limit negative rulings by the court have largely succeeded in recent years. Since the disastrous 2000-2001 term, when tribal interests lost nearly every decision, the justices have heard fewer and fewer Indian law cases.
This year looks a lot different, with the court set to resolve disputes over land-into-trust, the federal trust responsibility and Native Hawaiian rights. In all three instances, the lower courts ruled in favor of Native interests, leading to fears that the victories will be overturned.
The docket already has the Native American Rights Fund, whose attorneys help run the Tribal Supreme Court Project, suggesting that the current term “may prove to be another difficult period for Indian Country.”
The addition of two religious rights cases could make it even harder but since the lower courts ruled against Native interests both times, the justices may not be interested in hearing them. So far this term, they have already rejected three petitions from tribes who were on the losing end of a case.
The first case involves Winslow Friday, a member of the Northern Arapaho Tribe of Wyoming, who is being prosecuting for taking a bald eagle — a protected species — without a federal permit. He took the eagle for use in the sacred Sun Dance ceremony and argues that the permitting process violates his rights under the Religious Freedom Restoration Act.
“In the more than 20 years of the permit program’s existence, no individual tribal member has ever applied for or received a fatal-take permit,” his attorney wrote in a petition to the Supreme Court. “At the time of the hearing, only three permits had been issued, to two different tribes in the southwest represented by legal counsel, as opposed to individual Indians.”
A federal judge sided with Friday in October 2006 and dismissed the charges. But the 10th Circuit Court of Appeals reinstated the indictment in May of this year, rejecting the RFRA claims in a unanimous decision. Friday’s petition was filed October 1. The government’s response is due November 7.
In the second case, the Navajo Nation, the Hopi Tribe and other tribes in Arizona are suing to stop the U.S. Forest Service from allowing a ski resort in the sacred San Francisco Peaks to use reclaimed sewage to make snow.
The tribes say the presence of the wastewater will harm their religious beliefs. A three-judge panel of the 9th Circuit Court of Appeals initially sided with the tribes. But after a rehearing, an en banc panel reversed course and rejected the tribal RFRA claims by an 8-3 vote in August.
The tribes have not yet filed a petition with the Supreme Court. Earlier this month, the 9th Circuit agreed to stay the case while the appeal is being pursued.
Tribes used to look to the Supreme Court to protect their interests but the tide has changed in recent decades. Many attribute the reversal of fortune on the William Rehnquist, whose term as chief justice began in 1986 and ended in 2005, following his death.
“At a recent conference at the University of North Dakota School of Law, professor Alex Skibine remarked that since 1988, the Supreme Court has decided 33 of 44 Indian law cases against tribal interests,” Matthew Fletcher, the director of the Indigenous Law and Policy Center at Michigan State University, wrote in an Indian Country Today opinion piece last year.
President Bush’s two nominees to the Supreme Court — John G. Roberts, who now serves as chief justice, and Samuel Alito — have shifted the court into more conservative grounds. The winner of the next presidential election — either Sen. Barack Obama or Sen. John McCain — may get a chance to shape the court even further.
The district court issued a long opinion in favor of the Village of Hobart. The briefs are available at the NARF Supreme Court Project site.
Here’s the order. The Court will address two questions:
1. Whether the 1934 Act empowers the Secretary to take land into trust for Indian tribes that were not recognized and under federal jurisdiction in 1934.
2. Whether an act of Congress that extinguishes aboriginal title and all claims based on Indian rights and interests in land precludes the Secretary from creating Indian country there.
The Court declined to hear the third proposed question presented:
3. Whether providing land “for Indians” in the 1934 Act establishes a sufficiently intelligible principle upon which to delegate the power to take land into trust.