The Penobscot River and claims against military subcontractors

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Petitions of the week
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This week we highlight cert petitions that ask the Supreme Court to consider, among other things, whether the Penobscot Nation has regulatory authority over the Penobscot River or only over certain islands in the river, and how broadly to construe the combatant-services exception to the Federal Tort Claims Act.

Control over the Penobscot River in Maine

In Penobscot Nation v. Frey and United States v. Frey, two cases ask the Supreme Court to review an en banc decision of the U.S. Court of Appeals for the 1st Circuit concerning authority over the Penobscot River in Maine. Both petitions detail the history of relationships between the Penobscot Nation and various governments, from Massachusetts colonists to the Maine Indian Claims Settlement Act and the Maine Implementing Act in the 1970s. The MIA refers to the “Penobscot Indian Reservation” in terms of “the islands in the Penobscot River.” The MIA also provides for fishing, hunting, and trapping rights “within the boundaries of their respective Indian reservations,” any Maine laws notwithstanding.

In the petitions, the Penobscot Nation and the U.S. solicitor general indicate that the nation under the acts has regulatory authority over the Penobscot River, demonstrated in practice for example by the fact that Penobscot game wardens, not state game wardens, patrolled the river. In 2012, Maine claimed authority over the river on the ground that the nation’s fishing, hunting, and trapping rights related specifically to the “islands” in the river, not the river itself. The 1st Circuit agreed with Maine that “islands” in the MIA encompassed only land, not water. The petitions maintain, among the arguments, that the 1st Circuit erred in interpreting “islands” in isolation, without addressing history or context. Though not presenting a circuit split, the petitions suggest the issue could affect other Maine tribes.

The combatant-services exception to the Federal Tort Claims Act

Midwest Air Traffic Control Service, Inc. v. Badilla arises from the 2010 crash of a civilian cargo flight near Kabul Afghanistan International Airport, killing all eight people on board. The estates of six of the victims sued the Midwest Air Traffic Control Service, a contractor that provided air traffic services for United States military operations in Kabul. The estates alleged that the contractor was negligent by, among other things, failing to instruct the pilot to keep a “safe and proper separation” from the surrounding terrain. The district court dismissed the case under the combatant-activities exception to the Federal Tort Claims Act, which bars claims “arising out of the combatant activities of the military or naval forces … during time of war.” The U.S. Court of Appeals for the 2nd Circuit vacated that decision, however, on the ground that the exception did not apply because the military was not present at the scene and it had not issued a specific instruction to the contractor that compelled its directions to the pilot.

White House documents related to the Jan. 6 attack on the Capitol

As Amy Howe reported for SCOTUSblog, former President Donald Trump has asked the justices to block the release of White House records to the congressional committee investigating the Jan. 6 attack on the U.S. Capitol on the grounds of executive privilege, separation of powers, and the Presidential Records Act. The lower courts have disagreed. The case is Trump v. Thompson.

These and other petitions of the week are below:

Flowers v. United States
21-835
Issue: Whether conduct that is consistent with either lawful or unlawful behavior, and in which law-abiding members of the general public routinely engage, can establish reasonable suspicion justifying a stop under Terry v. Ohio merely because it occurs in a high-crime area.

Bohanon v. Lawrence
21-837
Issue: Whether, and in what circumstances, a federal court of appeals has jurisdiction over an immediate appeal from a district court’s summary-judgment order denying qualified immunity.

Penobscot Nation v. Frey
21-838
Issue: Whether the Maine Indian Settlement Acts — consistent with the Supreme Court’s precedents on statutory interpretation and the Indian canons of construction — codify the historical understanding of the Penobscot Nation, the United States, and the state that the Penobscot Reservation encompasses the Main Stem of the Penobscot River.

United States v. Frey
21-840
Issue: Whether the Penobscot Indian Reservation includes only the uplands of the islands in the main stem of the Penobscot River or also includes the surrounding river, where the Penobscot have fished, hunted, and trapped since time immemorial.

Midwest Air Traffic Control Service, Inc. v. Badilla
21-867
Issue: Whether state-law tort claims that arise out of the uniquely federal sphere of the military’s combat operations are preempted by the interests embodied in the Federal Tort Claims Act’s combatant-activities exception.

Trump v. Thompson
21-932
Issue: Whether a records request from the House Select Committee to Investigate the January 6th Attack on the United States Capitol violates the Constitution or laws of the United States, entitling former President Donald Trump to a preliminary injunction prohibiting production of the records to the committee.



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