Constitutional Problems With the Kentucky Proposal (Supported by Mitch McConnell) to Change the Way U.S. Senate Vacancies Are Filled

VIKRAM DAVID AMAR

In this second of a series of columns, Illinois Law dean and professor Vikram David Amar comments on the Kentucky proposal to change the way U.S. Senate vacancies are filled. Dean Amar argues that the Seventeenth Amendment precludes such a proposal, which would allow the state legislature to substantively constrain the governor’s choices in making a temporary appointment.

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Hawkins v. Haaland

Court: US Court of Appeals for the District of Columbia Circuit

Docket: 20-5074

Opinion Date: March 19, 2021

Judge: Judith Ann Wilson Rogers

Areas of Law: Civil Procedure, Government & Administrative Law, Native American Law

Ranchers in the Upper Klamath Basin region filed suit to prevent the exercise of water rights that interfere with the irrigation of their lands. The district court dismissed the complaint based on lack of standing under Article III of the Constitution. The DC Circuit affirmed the dismissal and concluded that the Protocol Agreement executed by the United States and the Tribes does not delegate federal authority to the Tribes but recognizes the Tribes' preexisting authority to control their water rights under a Treaty in 1864 with the United States. The court explained that there is no concurrence requirement imposed by federal law on the Tribes' reserved instream water rights, whether by the 1864 Klamath Treaty or the federal government’s trust relationship; the McCarran Amendment subjects the Tribes' reserved water rights to state procedural rules in its quantification proceedings, but the substance and scope of the Tribes’ rights remain governed by federal law; Oregon law does not require federal government concurrence to enforce the Tribes' water rights; and thus invalidating the Protocol, and requiring the federal government to independently assess whether it would concur in the Tribes' calls, would not remedy the Ranchers' injuries. Because the Ranchers fail to show their alleged injuries are fairly traceable to federal government action or inaction, or would be redressed by striking the Protocol, they lack Article III standing.

Moyant v. Petit

Court: Maine Supreme Judicial Court

Citation: 2021 ME 13

Opinion Date: March 23, 2021

Judge: Joseph Jabar

Areas of Law: Native American Law, Real Estate & Property Law

The Supreme Judicial Court affirmed the judgment of the superior court dismissing Appellant's complaint for lack of subject matter jurisdiction, holding that the superior court did not err in determining that Appellant's dispute with Regina Petit and the Passamaquoddy Tribe was an "internal tribal matter." After Appellant contacted the Chief of Police for the Passamaquoddy Tribe and caused Appellant to be served with a no-trespass notice, Appellant filed a complaint against Petit and the Tribe. The superior court granted Petit and the Tribe's motion to dismiss for lack of subject matter jurisdiction, concluding that the dispute involved an "internal tribal matter." The Supreme Judicial Court affirmed, holding that the most appropriate forum for this case was the tribal court.