Monday, September 24, 2007

Supreme Court Oct 2007 Term

The new Supreme Court Term begins today as the Court holds its "long conference."

SCOTUSBlog keeps a list of "petitions to watch," a list of cert. petitions its authors/editors think have a reasonable chance of being granted.

Two Indian law cases are on this list. The Gros Ventre and Catawba cases. Gros Ventre is a trust case in which the main question is whether there is a waiver of federal sovereign immunity under the APA. The 9th Circuit acknowledged an intra-circuit split and it appears there may be a split with other circuits, but refused to settle it by granting a petition for en banc review. The Tribe lost this case and given that there is a strong likelihood that the 9th Circuit didn't and the SCT won't see this as an important case (perhaps because the US won?), I doubt this will be granted. If the tribe had won....

The Catawba case regards the question of how the South Carolina legislature apparently amended the South Carolina Land Claims Settlement Act (banning video poker) without the Catawba tribe's consent. The S. Carolina supreme court held in favor of the State on this one. My guess is that this one won't be granted either because of the lack of importance to the Court and the lack of a national impact (e.g., no circuit split). This case is too small and implicates only S. Carolina. However, if the tribe proceeds on a theory in federal court that the entire Settlement Act is thereby void, opening the door to the restoration of Indian land claims (even though they lost the bulk of those claims in the 1980s), then maybe this case will be more important to the Court in the future. This one may be too early.

Keep in mind that the notion of "importance" to the Roberts Court, in my view, is that the legal right and duties of non-Indians and non-tribal governments have been implicated in some meaningful way by a lower court decision. Now that there is only one "Westerner" on the Court (Kennedy), it would appear that eight of the Justices would have no special interest in Indian law cases absent a state or federal interest.

There is one other Indian law case that was not selected by SCOTUSBlog as being a "petition to watch." The Yakama v. Colville case is probably not listed because it is an intertribal conflict missing any significant federal or state interests or individual rights interests.

The Teck Cominco lawsuit, which is not really an Indian law suit, involving transboundary pollution issues, is awaiting a Solicitor General Office's brief and Reber v. Utah 's file isn't complete yet.


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