United States v. Jicarilla Apache Nation

Lodging Issues before Supreme Court in U.S. v. Jicarilla Apache

Matthew L.M. Fletcher

The United States is objecting to some documents the Jicarilla Apache Nation [correction] amici Navajo Nation and Pueblo of Laguna are attempting to lodge with the Supreme Court. Here are the materials:

2011-03-16 DRB lodging request ltr

1978-01-24 Doc 14 – Fredericksmemo to Deputy ASIA re pooling

1983-07-21 Vollmann memo to ASIA re Mitchell II

1990-03-21 LaVell memo to AISA ontribal trust fund contractab

2011-03-30 SG ltr opposing lodging

2011-03-31 DRB lodging reply ltr

Documents lodged with the Court can be very important. In Carcieri v. Salazar, the OSG lodged documents with the Court, one of which was incredibly damaging to the government’s own position and became a partial basis for Justice Thomas opinion rejecting the Dept. of Interior proposed trust acquisition for the Narragansett Tribe:

Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of this provision at the time of enactment. In correspondence with those who would assist him in implementing the IRA, the Commissioner of Indian Affairs, John Collier, explained that:

“Section 19 of the Indian Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in effect, that the term ‘Indian’ as used therein shall include—(1) all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act … .” Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (emphasis added).

NCAI and FBA Amicus Brief in U.S. v. Jicarilla Apache Nation

Matthew L.M. Fletcher

Here: 10-382bsacNationalCongressOfAmericanIndians

Navajo & Laguna Pueblo Amicus Brief in U.S. v. Jicarilla

Matthew L.M. Fletcher

Here: NN-POL amicus brief

Jicarilla Nation Merits Brief in U.S. v. Jicarilla

Matthew L.M. Fletcher

Here: Jicarilla Respondent’s Brief.

Here is the government’s merits brief.

Supreme Court 2010 Mid-Term Update

Matthew L.M. Fletcher2 Comments

Much has happened and much is in limbo in this Term so far. Our two previous previews are here and here. Our previous mid-Term update is here.

Granted Cases

1. United States v. Tohono O’odham Nation (09-846).

The opinion in this matter will likely be available at any time, as many cases submitted to the Court around the same time have been decided already. If the Court does not issue an opinion next week, it may mean that there is a significant dissent or concurrence being generated. Oral argument recaps are here and here (from Millett and Meggesto). The oral argument transcript is here.

2. Madison County v. Oneida Indian Nation (10-72). GVR.

This is the big surprise of the Term, with the Supreme Court granting cert on the question whether tribes are immune from foreclosures by counties for failure to pay property taxes, and then the Oneida Indian Nation enacting an ordinance purporting to waive its immunity from such suits. Over the petitioners’ objections, the Court remanded the case back to the Second Circuit for reconsideration in light of Oneida’s waiver.

3. United States v. Jicarilla Apache Nation (10-382).

Other than Madison County, this is so far the biggest grant of the Term, with the United States seemingly seeking to limit its trust obligations to Indian nations dramatically. The case involves the government’s attorney-client privilege against the trust beneficiary in relation to trust-related documents. Oral argument is set for April 20.

Pending Petitions (CVSGs)

A very interesting development in the Supreme Court’s recent handling of the Indian law cases is the dramatic upswing in invitations to the Office of Solicitor General to opine on various cert petitions. Beginning last Term with Hogan v. Kaltag Tribal Council, the Court has issued a CVSG in five Indian law cases, far more than it ever has (though it makes perfect sense for the Court to ask the United States for advice on such petitions).

4. Brown v. Rincon Band (10-330).

The Court issued a CVSG in December 2010 in this case involving the IGRA good faith negotiation requirement after the Ninth Circuit held that California’s demand for revenue sharing violated the requirement. The invitation brief could come at any time.

5. Miccosukee Tribe v. Kraus-Anderson Construction Co. (10-717).

The Court CVSG’d this petition in January 2011. It’s a case involving federal jurisdiction over an effort by the Tribe to enforce a tribal court judgment against the construction company. Interesting in part because usually the Court pays little or no attention to tribal petitions for cert, so perhaps there is a change in the air. Expert commentary from Harold Monteau follows (Bethany Berger, I believe, made a similar argument in a comment, but I can’t find the posting):

One wonders why the Tribe did not seek registration/enforcement of its judgment in a State Court where KA has assets. The answer can only be that the Tribe’s legal counsel researched the possibility and came to the conclusion that a State Court would, under principles of comity, inquire into “due process” issues and would find that the denial of an appeal by a Tribal Council sitting as a court of appeals, knowing full well that it has a stake in the outcome, does not comport with thtat State Courts standards for due process and would not enforce the judgment. I don’t think the Supreme Court will grant cert. We are fast learning that Federal District Courts are courts of limited jurisdiction and jurisdiction can’t be premised pemised on an agreement. The Federal Court either has jurisdiction or it does not. Here, it does not. However, given the “activism” of the Court in recent years with regard to Indian cases, they could take it, uphold the Court of Appeals, but expound on issues of due process in tribal courts that don’t fit the “normal” American Jurisprudence scheme. I hope they just deny cert.

6. Osage Nation v. Irby (10-537).

Yet another CVSG, and the second CVSG of a tribal petition in the same Term (!). This case involves the Tenth Circuit’s holding that the Osage reservation has been disestablished by Congress, though it appears that the lower court applied the wrong standard in reaching the conclusion. Here is Patricia Millett’s commentary on the CVSG.

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U.S. v. Jicarilla Apache — Opening Government Merits Brief

Matthew L.M. Fletcher

Here.

U.S. v. Jicarilla Apache Materials (so far)

Matthew L.M. Fletcher

As you know, the Supreme Court granted the government’s cert petition in United States v. Jicarilla Apache Nation. Here are links to materials we’ve collected on the blog over the last few months.

Cert stage briefs

Federal Circuit materials

Justice Kagan has recused.

Supreme Court Grants Cert in Jicarilla Apache

Kate Fort1 Comment

As predicted, the Supreme Court granted cert in United States v. Jicarilla Apache Nation. The Court released the order list this afternoon instead of Monday.

Today’s Supreme Court Conference: Indian Law Petitions Up for Discussion

Matthew L.M. Fletcher2 Comments

There are two (actually three) petitions that will be discussed at least indirectly at today’s Conference (SCOTUSblog link here). We will know Monday if any of these petitions are granted, and later in the week if any are denied. In order of our estimates of the chance of a grant, here they are:

Significant likelihood (perhaps over 50 percent), based entirely on the fact that the Court typically grants far more than half of the federal government’s cert petitions:

Title: United States v. Jicarilla Apache Nation
Docket: 10-382
Issue(s): Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.

Certiorari-Stage Documents:

Likely being held for discussion depending on the determination in Jicarilla is the U.S. v. Eastern Shawnee petition (here).

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No Surprises at SCOTUSblog This Morning

Kate Fort

SCOTUSblog lists both Iron Thunderhorse v. Pierce and United States v. Jicarilla Apache Nation as petitions to watch in the Court’s January 7th conference.  Thunderhorse materials here and Jicarilla Apache Nation materials here.