The Penobscot River and Claims Against Military Contractors


Petitions of the week

This week, we highlight certificate petitions that ask the Supreme Court to consider, among other things, whether the Penobscot Nation has regulatory authority over the Penobscot River or only certain islands in the river, and to what extent to interpret it. combatant services exception to the Federal Tort Laws Act.

Control of the Penobscot River in Maine

In Penobscot Nation v. Frey and United States v. Frey, two cases ask the Supreme Court to review a U.S. Court of Appeals bench decision for the 1st Circuit regarding authority over the Penobscot River in Maine. Both petitions detail the history of relations between the Penobscot Nation and various governments, from the settlers in Massachusetts to the Maine Indian Claims Settlement Act and the Maine Implementation Act in the 1970s. The MIA refers to the “Penobscot Indian Reservation” In terms of “the islands of the Penobscot River”. The MIA also provides for fishing, hunting and trapping rights “within the limits of their respective Indian reserves”, notwithstanding the laws of Maine.

In the petitions, the Penobscot Nation and the Solicitor General of the United States indicate that the nation, by law, has regulatory authority over the Penobscot River, demonstrated in practice for example by the fact that the Penobscot game wardens , not state game wardens, patrolled the river. In 2012, Maine claimed authority over the river on the grounds that the nation’s fishing, hunting and trapping rights specifically pertained to the “islands” in the river, not the river itself. Circuit 1 agreed with Maine that the “islands” in MIA included only land, not water. The petitions argue, among the arguments, that the 1st Circuit erred in interpreting the “islands” in isolation, without addressing the history or the context. Although they do not present a division of the circuit, the petitions suggest that the problem could affect other tribes in Maine.

The exception of the combat services to the federal law on legal actions

Midwest Air Traffic Control Service, Inc. v. Badilla results from the crash in 2010 of a civilian cargo flight near Kabul International Airport in Afghanistan, 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 US military operations in Kabul. Estates alleged the contractor was negligent, including failing to require the pilot to maintain “safe and proper separation” from the surrounding terrain. The district court dismissed the case under the combatants’ activities exception to the Federal Torts Claims Act, which prohibits claims “arising out of the activities of combatants in military or naval forces … in time of war. war “. The United States Court of Appeals for the 2nd Circuit, however, overturned this decision on the grounds that the exception did not apply because the military was not present at the scene and they did not have given specific instruction to the contractor which required him to give his instructions to the pilot.

White House documents related to the January 6 attack on the Capitol

As Amy Howe reported for SCOTUSblog, former President Donald Trump called on judges to block disclosure of White House documents to the Congressional committee investigating the January 6 attack on the State Capitol -United for reasons of executive privilege, separation of powers and Presidential Archives Act. The lower courts disagreed. The case is Trump vs. Thompson.

These and others petitions of the week are below:

Flowers c. United States
21-835
Publish: Whether conduct consistent with lawful or illegal behavior and in which law-abiding members of the general public regularly engage may raise a reasonable suspicion justifying a judgment under Terry c. Ohio simply because it is happening in a high crime area.

Bohanon v. Lawrence
21-837
Publish: Whether, and under what circumstances, a federal appellate court has jurisdiction over an immediate appeal from a summary judgment order of a district court denying qualified immunity.

Penobscot Nation v. Frey
21-838
Publish: The Maine Indian Settlement Acts – consistent with Supreme Court precedents of statutory interpretation and Indian canons of interpretation – do they codify the historical understanding of the Penobscot Nation, the United States and the state according to which the Penobscot reserve encompasses the main trunk of the Penobscot River.

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

Midwest Air Traffic Control Service, Inc. v. Badilla
21-867
Publish: Are the tort actions under state law that arise from the exclusively federal sphere of military combat operations preempted by the interests embodied in the Federal Law on tort actionsthe exception of combatant activities.

Trump vs. Thompson
21-932
Publish: If a request for documents from the House Select Committee to investigate the Jan.6 attack on the United States Capitol violates the Constitution or laws of the United States, allowing former President Donald Trump a preliminary injunction prohibiting the production of documents to the committee.


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