The United States Constitution forms the solid foundation of the American legal system, spelling out the structure of government and guarantees of personal liberty in no uncertain terms. Yet, as evidenced by the cases on the Supreme Court’s January calendar, these seemingly straight forward edicts aren’t always so simple in practice. The Court’s first arguments of 2016 examine the nuances of the rights guaranteed by the Constitution, and small changes in the Court’s interpretation of these provisions may have far reaching consequences.
In Monday’s Friedrichs v. California Teachers Association, the Court will consider whether requiring public employees who choose not to join a union to pay agency fees amounts to forcing them to subsidize political speech in violation of their First Amendment rights. In Wednesday’s Puerto Rico v. Sanchez Valle, the Court will decide whether the Fifth Amendment’s guarantee against double jeopardy applies to convictions in the courts of Puerto Rico, a United States territory. And in next week’s Heffernan v. City of Paterson, the Court will be called upon to determine whether an individual’s First Amendment rights have been violated when a government official retaliates against him based on a mistaken belief that he engaged in behavior that would be protected had it actually occurred.
Meanwhile, the Court on Tuesday will weigh the rights of convicted felons to challenge mistakes made at trial. In Duncan v. Owens, it will consider just how far removed a trial judge’s ruling must be from standard practices to violate clearly established law and thus qualify a defendant for habeas relief. In the very next case, Molina-Martinez v. United States, the Court will be tasked with resolving whether a trial judge’s mistake in calculating a sentence implicates the defendant’s substantive rights to the point of being reversible error.
What follows is On the Docket’s preview of the Supreme Court’s January docket, and as always, don’t forget to check back for analysis and commentary from prominent legal scholars as opinions are announced!
January 11
Friedrichs v. California Teachers Association
9th Cir.; No 14-915
Does a union engage in ideological political advocacy when it bargains with the government on behalf of public employees, and thus implicate the First Amendment rights of its financial supporters? This seemingly simple question carries with it vast ramifications for the continued vitality of collective bargaining in the public sector. Though the answer has been a matter of settled law for nearly forty years, the Supreme Court has invited the petitioners in Freidrichs to directly challenge the established precedent, telegraphing what many believe to be the culmination of a sea change with severe consequences for public employee unions.
To view Freidrichs in context, some familiarity with the evolution of collective bargaining in the United States is required, particularly with regard to a contractual term known as a “union security clause”. Following the initial passage of collective bargaining laws during the New Deal, it was common for unions to negotiate “closed shop” agreements with employers, prohibiting the employer from hiring new employees that were not union members. In 1947, Congress amended existing laws to outlaw these arrangements. To address the problem of “free riders”, though, or those workers who would enjoy the benefits negotiated by a union legally bound to represent them without themselves becoming union members, Congress chose to permit less restrictive “agency shop” agreements when they are not otherwise prohibited by state law. Under an agency shop agreement, new employees may be required to become at least “financial core” union members, meaning that they are obligated to pay periodic union dues but are not required to participate in the internal operations of the labor organization. Though the relevant statutes do not cover public employees, many states have since passed their own labor relation laws for public sector workers, modeled after the national legislation and including provisions permitting agency shop agreements.
Over the years, non-union employees have challenged agency shop requirements on statutory and First Amendment grounds, arguing that requiring financial core membership violates their freedom of speech and association. A series of Supreme Court decisions on the subject established a dichotomy between unions’ representation activities and their political activism. Unions are free to spend the contributions of financial core members on the former, as the dues simply constitute payment for services rendered. Financial core members are under no obligation, however, to subsidize political speech with which they disagree, and upon their objection a union must reduce these employees’ dues in proportion to the amount spent on political advocacy. The distinction between the two categories becomes hazy when applied to public unions, whose bargaining activities are inherently aimed at influencing government policy with regard to their members’ terms of employment. Nonetheless, the Supreme Court affirmed the framework as applied to public employees in 1977’s Abood v. Detroit Board of Education.
The modern Court has expressed skepticism regarding Abood’s reasoning, most recently and directly in 2014’s Harris v. Quinn, which challenged the assessment of union fees to home care workers who were compensated through Medicaid disbursements. Though the case was ultimately resolved by a determination that the caregivers were not public employees, the majority opinion in Harris cast overt doubt on the application of the doctrine as a whole to the public sector, repeatedly referring to the Abood analysis as “questionable” and contending that the past Court had “seriously erred”. Fredrichs, a similar protest brought by public school teachers, has since been fast-tracked through lower courts as the direct challenge to Abood not presented by Harris.
Should the Court overturn Abood, it may constitute a substantial blow to public unions across the country, as well as collective bargaining in America as a whole. Though union density in the private sector has declined steadily over the past thirty years, unionization in the public sector has remained strong up to this point, with density rates today resembling those seen in the general population during the height of organized labor’s strength. But, as evidenced in states that have passed “right to work” laws outlawing agency shop agreements, the free rider problem poses a considerable threat to unionization, cutting significantly into the funds labor organizations require for their continued operation. Labor advocates despondent at potentially losing their last firm foothold in the United States may take some small solace in the fact that the petitioners have offered a narrower alternate ground on which the Court may rule if it does not wish to fully cast aside the Abood precedent: an inversion of the common opt-out rule, under which public unions would be required to obtain financial core members’ affirmative consent to spend their dues on political activity.
January 12
Duncan v. Owens
7th Cir.; No. 14-1516
In a case where it took four separate appeals by defendant/respondent Lawrence Owens to obtain habeas relief, it may appear at first blush like a simple case about a federal circuit court giving insufficient deference to a state trial court. However, this case digs deeper than your average habeas relief case and examines interpretation of the Supreme Court’s law regarding when a federal court may provide post-conviction relief under the Antiterrorism and Effective Death Penalty Act (AEDPA).
In November 2000, Lawrence Owens was on trial for the murder of a seventeen-year-old drug dealer in a bench trial outside of Chicago. Two eyewitnesses testified, although their testimony was inconsistent at best. In absence of any evidence to support it, the judge concluded that Owens knew that the youth was a drug dealer and wanted to kill him. Owens was then convicted of murder. The Illinois Court of Appeals affirmed his conviction, finding that even though there was no evidence to support the trial judge’s reasoning, any constitutional error was harmless because one of the eyewitness’s testimonies was sufficient to convict Owens of the crime. The Illinois Supreme Court denied Owens’ petition for discretionary review, and the district court denied a petition for habeas relief.
It wasn’t until the Seventh Circuit that Owens finally found relief. Judge Posner wrote for the unanimous court, expressing incredulity that the trial judge had based its reasoning on evidence not proven at trial and holding that there was no basis for the trial judge’s decision whatsoever. The highly deferential standard of the AEDPA still was a hurdle though, as it provides for habeas relief only if the state court’s decision was contrary to clearly established federal law “as determined by the Supreme Court of the United States.” The Seventh Circuit, basing its decision on three Supreme Court cases, found that the right of the accused to be judged on the basis of evidence introduced at trial overcame that hurdle. Regarding the harmless error determination, the Seventh Circuit found that the trial judge’s reasoning based on no facts established at trial was not in fact a harmless error at all.
On Tuesday, the arguments will focus primarily on what is “clearly established” law and whether or not the Seventh Circuit appropriately granted habeas relief to Owens under this law. The Court may not have to decide that issue, though, and may gravitate towards the harmless error determination. By holding that the determination was not unreasonable, the Court could decide the case in favor of the state without having to rule on what the previous clearly established law is and how factually similar or different a case has to be to use the law to obtain habeas relief under the AEDPA.
Molina-Martinez v. United States
5th Cir.; No. 14-8913
Saul Molina-Martinez is not exactly a sympathetic defendant. Molina-Martinez’ latest dalliance with the justice system came in 2012, while attempting to sneak past a border-patrol checkpoint in Texas. Previously, he had been deported twice for convictions of aggravated burglaries in Tennessee. Molina-Martinez pleaded guilty for unlawfully being in the United States after having been deported for an aggravated felony. He was sentenced to 77 months in prison, based in part on an incorrect reading of sentencing guidelines.
Before the Sentencing Reform Act of 1984 (“SRA”), federal judges had very little guidance on sentencing recommendations, and their determined sentences were essentially unreviewable on appeal. The SRA established the U.S. Sentencing Commission, whose job included the publication of a Guidelines Manual to help provide judges with guidance on how to determine the appropriate range of sentences. Now, judges combine the level of the offense with a criminal history score to determine the recommended range of sentencing.
Molina-Martinez’s sentence of 77 months was based in part on the district court’s calculations of his criminal history score to be a category VI, which resulted in 77 to 96 months of sentencing recommended by the guidelines. The district court judge accepted Molina-Martinez’s argument for the minimum sentence and that was the end of the story, for the time being. However, Molina-Martinez took it upon himself to file pro se on appeal, asserting that the district court incorrectly calculated his criminal history score. He argued that his score should have been a category V, which would have directed the judge to a sentencing range of 70 to 87 months, instead of 77 to 96 months.
The Fifth Circuit held that because he did not object to the calculations in the district court, it would only be reviewable under the plain error test of the Federal Rule of Criminal Procedure 52(b). Federal Rule of Criminal Procedure 52(b) provides that “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The court held that because Molina-Martinez’s actual sentence fell within the correct guidelines and he did not establish other evidence that his substantial rights were violated, that his sentence would be upheld.
On appeal to the Supreme Court, Molina-Martinez puts forth the view of the Third and Tenth Circuits, which hold that an error that affects the sentencing guideline range is presumed prejudicial and therefore violates his substantive rights. He also contends that this view is accepted under the previous Supreme Court case of United States v. Olano. The government responds that the Court should not adopt a presumption of prejudice for incorrect basis of sentencing guidelines and that it would shift the burden to the government even though the defendant had previously forfeited the claim. With a Court that has been wary of diluting plain-error review and the specific facts of Molina-Martinez’s sentencing falling within the accepted guidelines of the correct range, Molina-Martinez will likely face a difficult time in Court on Tuesday trying to convince the Justices to adopt a presumption of prejudice.
January 13
Puerto Rico v. Sanchez Valle
P.R.; No. 15-108
Puerto Rico’s government hails this case as “the most important case on the constitutional relationship between Puerto Rico and the United States” in a rare term where the Court will hear two cases regarding Puerto Rico’s legal status. In the case of Puerto Rico v. Sanchez Valle, the Supreme Court, if it reaches the merits of the case, will determine the legal status of the island for purposes of the Double Jeopardy Clause of the U.S. Constitution.
In September 2008, two Puerto Rican men, Luis Sanchez Valle and Jaime Gomez Vazquez, were charged by local prosecutors for violating the island’s gun laws for selling a gun without a license. Before the local charges went to trial, federal prosecutors charged the men under similar federal laws. Both men were found guilty of the federal charges and sentenced to prison time. They both subsequently asked Puerto Rican courts to dismiss the local charges because doing so would violate the Fifth Amendment’s protection against double jeopardy.
The Fifth Amendment protects individuals against being tried more than once for the same crime by the same sovereign. The Supreme Court has long held that the States are separate sovereigns for the purpose of the Double Jeopardy Clause, and the question before the Court is whether Puerto Rico enjoys the same title of an independent sovereign for this purpose. The trial judges agreed with the defendants, and dismissed the local charges. Sanchez Valle and Gomez Vazquez’s victories were short lived, however, with the Court of Appeals overturning the trial court, saying they were bound by a 1988 Supreme Court of Puerto Rico decision which held that the territory was a separate sovereign entity for the purpose of double-jeopardy, a position that has also been long held by the First Circuit. An appeal by the defendants to the Puerto Rico Supreme Court overturned the Court of Appeals, holding that Puerto Rico is not a distinct sovereign entity but instead part of the United States. The Court overruled the 1988 case, and also acknowledged its departure from the First Circuit’s holding, again dismissing the local charges against the defendants.
The government of Puerto Rico appealed to the Supreme Court of the United States, relying on federal law that gives the Justices the authority to review final judgments by the Puerto Rico Supreme Court. Puerto Rico’s government argues that the Court, for purposes of interpreting the Double Jeopardy clause, has focused on if the entity has the power to enforce its own laws. The government further contends that since enacting its own Constitution in 1952, the laws of the territory have come from the people of Puerto Rico, and are enforced by its own sovereignty, much the same way States of the United States do.
Sanchez Valle and Gomez Vazquez argue that, irrespective of the 1952 constitution, Puerto Rico is still a territory under Article VI of the United States Constitution and its sovereignty is granted to it by the United States government. This view is supported by the United States government, which filed an amicus brief urging the Court to uphold a 1907 decision concerning the Philippine Islands in which it held that the Double Jeopardy clause applied to territories because they were not sovereigns distinct from the United States government. The federal government further contends that briefs filed by the Department of Justice twenty years ago advising that Puerto Rico was a separate sovereign entity no longer reflects the view of the Executive Branch. In the first case concerning Puerto Rico since Justice Sotomayor joined the court, both the holding and the dicta will be important signals for policy makers concerning Puerto Rico’s status moving forward.
However, there is a possibility that this case will not reach the merits. On Friday, January 8th, the Court’s clerk told the lawyers on both sides to be prepared to be asked about the power of the Court to decide the case. While the Court’s ability to hear the case was not originally at issue, an amicus brief filed by the Virgin Islands Bar Association raised the issue. The brief asserts that because the indictment is a multi-count indictment and the constitutional question in this case is only limited to a single count, that the decision by the Puerto Rico Supreme Court is not “final” and therefore the Court is not able to decide it at this time. Puerto Rico’s government briefly addressed the issue in a footnote of their brief, contending that the issue was meritless because the double jeopardy issue had been finally decided and that the issue will survive regardless of the outcome of the remaining proceedings. Apparently at least one Justice believed this question merited more discussion, and at the last minute provided the lawyers on both sides with an extra assignment to prepare in advance of Wednesday’s arguments.
Bank Markazi v. Peterson
2nd Cir.; No. 14-770
Lance Corporal James C. Knipple was killed in 1983 in the terrorist bombing of the U.S. Marine barracks in Beirut, Lebanon. At age 20, he was one of 241 Americans who died in the attack. His sister, Deborah Peterson, filed a wrongful death lawsuit against Iran, asserting that the government was responsible for the terrorist acts. Iran, which refused to enter the case to defend itself, was not granted foreign sovereign immunity because of a law that denies that privilege to countries that sponsored acts of terrorism. Judgments were issued against Iran and in favor of Deborah Peterson and other families of survivors of Iran-sponsored terrorist attacks, and when Iran refused to pay, the families went to court to seek the assets of Iran’s central bank, Bank Markazi. The lawsuits traced assets owned by the bank to bonds worth nearly $2 billion held at Citibank in New York.
While the lawsuit worked its way through the courts, the families sought relief from Congress. Congress responded by passing the Iran Threat Reduction Act of 2012. §502 of the Iran Threat Reduction Act, codified as 22 U.S.C. § 8772, provides for the Citibank assets to be used to satisfy the judgments of the Peterson and other cases, citing the cases by docket number and providing that the law would not apply to any other proceedings. The law did instruct the trial judge to make two findings of law: whether or not Bank Markazi had a beneficial interest in those assets and whether or not anyone else had a legally protected interest in the assets.
On appeal to the Supreme Court, Bank Markazi asserted that the law effectively dictated the outcome of a case pending before the courts, which was in conflict with the separation of powers doctrine and a violation of the law set forth in United States v. Klein. United States v. Klein is an 1871 decision by the Supreme Court that held that Congress has no power to prescribe how a court must decide a case or legal issue. The Bank stressed that the law takes the real issue if the assets can be attached or not out of the hands of the courts and only provides for “makeweight findings.”
The families of the victims first point to the fact that this argument had not been made by the Bank in the lower courts. They further assert that the Court has upheld laws enacted to govern the outcome of specific cases and that there is no constitutional authority that dictates that Congress cannot change a law for a single pending case. The federal government, who opposed the Court’s review of this case, filed an amicus brief on the merits and sides with the families. The government contends that the main question to be asked is if the law leaves any adjudicatory function to the courts. In this case, the government proffers, the 2012 law directs the judges to decide two findings of law and therefore passes this test. The government further argues that Congress has special powers to write laws dealing with obligations of foreign governments and this case provides a clear example of Congress making use of such power.
This case invited several amicus briefs in favor of the families of the victims, including from interest groups who believe that the outcome of this case could either significantly help or inhibit attempts to recover assets from other foreign governments in similar cases.
January 19
Heffernan v. City of Paterson
3rd Cir.; No. 14-1280
The issue raised by Heffernan v. City of Paterson seems almost like philosophical musings on first glance: are an individual’s Constitutional rights violated when a government official mistakenly retaliates against the person for activity that would be protected by the First Amendment had it actually occurred? The matter is far from an abstract thought exercise in the case at hand, though, and both parties to the dispute caution that a ruling endorsing the other side’s position would have disastrous consequences for public employees in the United States.
The controversy stems from the 2006 mayoral election in Paterson, New Jersey. Lawrence Spagnola, a former police chief of the city, ran against the incumbent mayor Jose Torres for Paterson’s top executive office. Torres enjoyed the support of the current police chief, James Wittig, as well as Wittig’s top executive officer, Lieutenant Patrick Papagni. At the time, Jeffery Heffernan was employed as a police detective and assigned to administrative detail in Chief Wittig’s office under Lieutenant Papagni’s direct supervision. Mr. Heffernan was a personal friend of Spagnola, but was not involved with the campaign, and, indeed, was ineligible to vote due to residing outside city limits. Shortly before the election, Mr. Heffernan’s bedridden mother asked him to acquire a Spagnola yard sign to replace one that had been stolen from her lawn. Upon driving by the campaign distribution point, a police officer patrolling the area witnessed Mr. Heffernan speaking with Spagnola’s campaign staff while holding the requested sign and reported this information back to Chief Wittig’s office. Believing him to be engaged in posting signs for Spagnola, Chief Wittig demoted Mr. Heffernan to walking patrol the following day, citing his “overt[] involvement in a political election.”
Heffernan sued Wittig, Torres, and the city in federal court under 42 U.S.C. § 1983, the statute creating a cause of action for individuals who are deprived of Constitutional rights by government officials. He argued that his demotion was retaliatory, and thus violated his rights to free speech and free association. The case has a complicated procedural history that includes a jury verdict in Heffernan’s favor that was set aside, as well as multiple appeals and remands covering a breadth of issues. Currently before the Supreme Court is a summary judgement in favor of the defendants, granted on the grounds that a plaintiff must show that both protected activity and retaliation were present to prevail on a First Amendment retaliation claim. Because Heffernan maintains that he did not actually aid the campaign in any way, the trial court reasoned, no such protected activity took place, despite Wittig and Torres’ belief at the time of the demotion. The Third Circuit affirmed under applicable precedent, setting the stage for review by the highest Court in the land.
All parties agree that, as a general rule, the government may not retaliate against public employees for actually supporting a candidate in an election. The sides diverge, however, as to whether such claims should be permitted when no such support actually took place. Heffernan argues that the matter should be controlled entirely by the employer’s perception at the time of the retaliation. To hold otherwise, he contends, would lead to absurd results, allowing employers to skirt civil rights protections so long as they happen to be wrong about the operative facts. In contrast, the city argues that Heffernan’s position would severely disrupt government workplaces by allowing any party adversely affected by an employment decision to sue, forcing the government to constantly litigate to prove officials were not motivated by some mistaken belief regarding protected activity.
Americold Realty Trust v. ConAgra Foods, Inc.
10th Cir.; No. 14-1382
In a society that has become increasingly commercialized and legalized, trusts, where one party (trustor) gives another (trustee) the right to hold title to property or assets for the benefit of a third party beneficiary, play an important role. But if you want to bring suit against a trust, how do you know whether or not you can bring the case in federal or state court? Article III, § 2 of the United States Constitution provides for a federal court to hear a case based on diversity jurisdiction: where parties are citizens of different states. How, though, do you determine the citizenship of a trust? In theory, there are three different parties on whom citizenship could be base: the trustor, the trustee, or the beneficiary. In Americold Realty Trust v. ConAgra Foods, Inc. the Supreme Court will help unite divided lower courts by answering this question.
The plaintiffs in the case, respondents ConAgra Foods Inc. and Kraft Foodservice, sued Americold Logistics and Americold Realty Trust in Kansas state court. Americold removed the case to federal court, and the district court found in favor of the defendant’s summary judgment motion. On appeal to the Tenth Circuit, the court raised the issue of improper removal instructed the parties to brief the issue. The Tenth Circuit then decided that when the trust itself is a party to the litigation, the trust’s citizenship is derived from all of the trust’s members, including the trust’s beneficiaries. The court then went on to hold that because Americold did not establish the trust’s beneficiaries as diverse from other parties in the case, removal on the basis of diversity jurisdiction was improper and the court remanded the case.
The Tenth Circuit distinguished it’s finding from a 1980 Supreme Court case Navarro Savings Ass’n v. Lee, which holds that if a trustee is bringing suit on behalf of the trust, then it is the trustee’s citizenship rather than that of the beneficiaries that is relevant for determining citizenship for diversity purposes. The Tenth Circuit asserts that Navarro is a limited holding, that does not define citizenship of a trust for all purposes, in concert with a Third Circuit decision. Furthermore, the Tenth Circuit continues, the Supreme Court’s 1990 decision in Cardon v. Arkoma Assocs. applies, where the Court held that the citizenship of at rust is derived by the citizenship of all of its members when the trust itself is a party to litigation.
Navarro and Cardon have led to circuit split concerning trust citizenship, and the legal community will be looking carefully at this decision and its implications for any future litigation concerning trusts.
January 20
Sturgeon v. Frost
9th Cir.; No. 14-1209
A central tenant of the federal justice system is that it is not a political institution. The Supreme Court is meant to be insulated from political pressures in order to impartially interpret and apply the law. Yet many cases throughout American history have strained this presumption. The Court has on many occasions played a conspicuous role, drawing the nation’s attention as it serves as the final arbiter in hotly contested debates. Frequently, though, it influences politics more subtly, answering seemingly esoteric questions of law that have great ramifications for contemporary conflicts. Such is the case in Sturgeon v. Frost, in which the Court will weigh in on a topic that even now is the subject of an armed standoff in the state of Oregon: the federal government’s right to regulate the use of large swaths of federal land in the western United States.
John Sturgeon is a lifelong citizen of Alaska who purchased a motorized aquatic “hovercraft” in 1990. Having properly registered the craft with the state, Sturgeon used it periodically to navigate the Nation River during his annual moose hunting trip to the Yukon Charley Preserve. In 2007, agents of the National Park Service (NPS) confronted Sturgeon during one such trip, informing him that such crafts were prohibited on navigable waters within National Parks by nationwide NPS regulation. When Sturgeon challenged the NPS’s authority to enforce the ban, the officials threatened him with criminal prosecution.
Sturgeon brought suit in 2011, naming the Alaska Regional Director of NPS as a defendant. His argument proceeds in two parts. First, he claims that Section 103(c) of the Alaska National Interest Lands Conservation Act of 1980 (ANILCA) exempts Alaskan inholdings, or non-federally owned land located within the boundaries of a national park, from general NPS regulation. This contention rests on a portion of 103(c) that states that “[n]o lands which, before, on, or after [ANILCA’s enactment], are conveyed to the State, to any Native Corporation, or to any private party shall be subject to the regulations applicable solely to public lands within such units.” Because the hovercraft ban applies to public land, he argues, it cannot be enforced on inholdings. NPS counters that this reading of the statute fails to account for the final words in the sentence, and that inholdings are exempt only from those regulations that specifically target public lands within the units that make up Alaska’s national parks. Because the hovercraft ban is affective nationwide, it cannot be said to apply solely to those lands, and it is thus enforceable on inholdings.
The district court and Ninth Circuit Court of Appeals have sided with NPS on the issue, holding the regulation to be applicable. Even were Sturgeon to convince the Supreme Court of his interpretation, though, he would also need to prove the second portion of his argument in order to prevail: to wit, that the Nation River is an inholding. Under Sturgeon’s theory, the bill that admitted Alaska as a state, the Alaska Statehood Act of 1959, “conveyed to” Alaska title to its navigable waters by virtue of incorporating an earlier law, the Submerged Lands Act of 1953. The earlier statute granted states title to the lands underlying navigable waters within their boundaries. Sturgeon claims that in transferring the land under the water to Alaska, the United States also transferred the waters themselves, making all navigable waters state property.
NPS responds in two ways. First, it cites the longstanding American rule that it is impossible to own running water outright. Rather, parties may own only “usufructuary”, or use rights in the water currently located on their land. Second, the service contends that even were the Court to view the United States to have conveyed the water to Alaska, the federal government clearly reserved certain rights in the transfer, similar to when individuals reserve an easement to cross land that they sell in order to reach their property. This qualifies as a property interest, and ANILCA defines “public lands” to include “lands, waters, and interests therein.” Thus, the river cannot be an inholding and does not fall within the 103(c) exemption.
Behind this seemingly provincial debate over the meaning of a statute that applies only to Alaska lies a much larger question of federal land use. The State of Alaska has filed an amicus brief in support of Sturgeon pointing out that the federal government owns nearly sixty percent of the land in Alaska and that over 19 million acres qualify as inholdings. Similar or greater proportions of other western states are federally owned, including two-thirds of Utah, which has enacted state legislation directing the federal government to turn over certain lands to state ownership, and eighty percent of Nevada, where another armed standoff occurred last year between ranchers and the federal government over grazing rights on federal land. A sweeping ruling in Sturgeon could send a strong message regarding federal control of undeveloped land at a time when debates on the subject are center stage in national dialogue.
Nebraska v. Parker
8th Cir.; No. 14-1406
The Supreme Court’s current term has seen a range of disputes involving Native American rights, including the power of tribal courts over non-Indians in Dollar General Corporation v. Mississippi Band of Choctaw Indians and the statute of limitations on claims arising from tribal contracts with the federal government in Menominee Indian Tribe of Wisconsin v. United States. The Court will once again weigh in on the scope of tribal sovereignty in Nebraska v. Parker, which concerns when and how an Indian Reservation may be “diminished”, or ceded in part to the state within which it is located.
Through a series of 19th century treaties, an area of land in Nebraska was established as a reservation for the Omaha and Winnebago Indian tribes. In 1880, the Omaha tribe granted a right of way easement to through this land to the Nebraska Railroad Company. Two years later in 1882, Congress passed an act authorizing the sale of plots of land west of the railroad right of way with the proceeds being placed in trust on behalf of the tribe. Notably, the bill did not specify whether the land was to remain part of the reservation, and thus subject to the tribe’s jurisdiction. By 1919, all of the land west of the right of way was owned by non-Indians, and a small town called Pender was established in the area.
In 2004, the Omaha Tribe enacted an ordinance regulating and taxing the sale of alcohol on reservation land and asserted jurisdiction over businesses operating in Pender. Pender, along with a number of alcohol retailers, sued the Tribe in federal district court, arguing that the 1882 Act had diminished the Omaha reservation and granted the land west of the right of way to the state of Nebraska. Nebraska intervened, joining Pender as a plaintiff, as did the United States as a defendant.
Diminishment of tribal lands is generally governed by a three-pronged test set forth in 1984’s Solem v. Bartlett. First, courts look to the language of the statute authorizing the sale of the land to evaluate whether diminishment was intended. Second, courts examine the circumstances surrounding the legislation to determine whether it was widely understood at the time that the passage would result in diminishment. Lastly, the Solem Court acknowledged that land may lose its Indian character over time through events following the passage of the act, resulting in de facto diminishment. However, the Court was careful to clarify that “traditional solicitude for the Indian tribes” requires that the third factor may not be determinative when “substantial and compelling evidence” of Congressional intent satisfying the first two factors is not present, with any ambiguities resolved in favor of the Tribe.
Here, Nebraska and Pender argue that the third prong of the Solem test should be given equal weight, relying on logic analogous to adverse possession or squatter’s rights. They claim that the tribe has acquiesced to state governance over the land since 1882, and that residents of the area have formed “justifiable expectations” that they would be treated as residents of the state. The Tribe and Federal Government disagree, characterizing the local governance of the area over the past century as “rife with contradictions and inconsistencies.” Moreover, they argue, Congress clearly did not intend to diminish the land in the initial act, as evidenced by differences in the bill’s language as compared to similar contemporaneous legislation that was so aimed. Therefore, the subsequent history should be irrelevant to the Court’s analysis.
The conflict plays out against the backdrop of larger conflicts between Native American tribes and neighboring non-Indian settlements across the country. For one, some inferences may be drawn regarding the Omaha’s motivation for exerting jurisdiction in these particular circumstances from the fact that the Pender has seven liquor stores with a population of only about a thousand. Similarly-situated municipalities across the country warn through amicus briefs, however, that a ruling for the tribe may cause substantial disruption in many towns that have long been subject to state governance, including by removing their residents’ constitutional guarantees to due process and equal protection.
Post authored by On the Docket Fellows, Spencer McCandless and Talya Bobick.
