Legal Docket: Testing treaties

NICK EICHER, HOST: It’s Monday morning, start of a new work week for The World and Everything in It.

Today is the 7th of May, 2018. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

The Supreme Court is in the home stretch. Justices and their clerks are busy finalizing opinions for release between now and the time the term ends — around June 30th.

So for today and the next few Mondays I’ll work to bring you current on the remaining cases from this term. If you’ve followed along since October, take heart. You are just nine cases away from having heard them all.

Today, three of them, so buckle up! I’m going to move fast.

EICHER: First up, the federal government’s promises to Native Americans. Back in the mid-1800s, the government signed treaties securing what had been tribal lands, in exchange for promises to protect certain rights.

Here, 21 Indian tribes are asking the Supreme Court to affirm that promises made back then still apply today. One of the rights the tribes retained was access to their customary fishing grounds. They assumed there’d still be fish in those waters.

REICHARD: And that’s at the heart of the legal controversy.

Before the founding of the United States, the native populations of the Pacific northwest for hundreds of years depended upon salmon for survival.

And the salmon depend upon a certain habitat. They survive by making a long journey from freshwater streams to oceans and back again, hundreds of miles. They make the journey and then they reproduce. If the fish don’t make that journey, they die before reproducing.

EICHER: Now, we need to talk about culverts: those large pipes that let streams pass underneath roads. They’re important to keep water off the roadways, but they also interfere with salmon migration.

The native population calls them “barrier culverts,” and they’re at the center of this lawsuit that’s been brewing now for 17 years.

Back in 2001, the tribes sued, and as things stand now, the 9th U.S. Circuit Court of Appeals says Washington state must honor the right of Indians to fish by protecting the fish.

Washington state is appealing.

REICHARD: At the Supreme Court, here’s the state’s lawyer, Noah Purcell.

PURCELL: The state of Washington wants to protect salmon and has spent billions of dollars to achieve that goal. Our objection is the unworkable treaty right the 9th circuit announced…the treaties would regulate virtually every significant human activity off reservation. 

Purcell’s argument is that lots of other things affect salmon populations, not just culverts. Dams do, too, for one example.

But the lower court here ordered the state to fix the culverts on a certain time schedule. And the state says it doesn’t have the money to do that in a timely way. Its argument is, the courts need to give cities and states more flexibility. Some wiggle room, even if it does affect some treaty rights of the Native Americans.

That argument ran into trouble from Justice Neil Gorsuch.

GORSUCH: For me, I think that’s really where the case boils down and I’m struggling with that, right? You assert that you have rights to pursue other public goods and that those can outweigh the treaty, effectively. And so any violation these culverts has to be weighed against the benefits they provide to other persons… But,­ but—but doesn’t that potentially eliminate the treaty altogether, and doesn’t—wouldn’t it defeat it entirely? The point of a treaty, I would have thought, would have been to—to freeze in time certain rights and—and to ensure their existence in perpetuity, regardless of what other social benefits a later municipality might be able to claim.

A lot of discussion revolved around numbers, as in, how many fish must be lost before the law considers their loss a — quote — “large decline.”

Lawyer Allon Kedem argued in support of the tribes on behalf of the federal government.

KEDEM: When the U.S. promised the tribes federal protection for their pre-existing right to take fish, that included more than just the hollow promise of access to fisheries that could be blocked off and emptied of their salmon.

But how to balance that with the need for flood control? Both sides have a point.

Still, the Constitution holds federal treaties as supreme. And the Supreme Court again and again has upheld treaties in favor of Native Americans.

States, for example, don’t get to impose on Native Americans a license fee to fish. The court says that’s a clear violation of the very thing the treaties aimed to preserve in the first place.

Another example has to do with private landowners. They can buy and sell land, but the court has protected tribal members’ access to the river.

I don’t see the high court going against its own precedent here. I think the court will require the state to protect the salmon populations.

My second case involves bankruptcy.

What the federal bankruptcy code seeks to do is find a balance: give debtors a fresh start, but also protect creditors from liars taking advantage of them.

Here, a Georgia businessman named Scott Appling hired some lawyers to represent him. Appling fell behind in paying them, eventually $60,000 behind. Appling told them he’d pay up once he received a tax refund that he expected would more than cover the bill.

Except he didn’t do that.

So the law firm sued and won, and then Appling filed for bankruptcy.

He says the bankruptcy court should discharge the debt to his lawyers, meaning wipe the debt off his balance sheet.

The bankruptcy code is clear that debts incurred by a false statement are not dischargeable. Clearly, Appling was untruthful about the tax refund. But here’s where things get muddy. There’s an exemption involving statements about about the debtor’s “financial condition.”

So is Appling’s false statement about his tax refund a statement of financial condition? Even Supreme Court justices seemed flummoxed over that. Here’s an exchange between Justice Stephen Breyer and Appling’s lawyer, Gregory Garre:

GARRE: One could say that you’d look to whether a reasonable person in context would view the statement as being about one’s overall financial situation.

BREYER: But it’s in context. Doesn’t it? The bank says, Schmidt, you are broke.  Are you kidding, says Schmidt, I have a genuine Vermeer … I mean, and, oh, oh, I didn’t know that, says the teller. Here’s $100,000. I mean, what—what—you know, what’s that, if it’s not about overall financial?

Vermeer paintings are considered priceless, by the way, and the 35 known still to exist are in museums.

But back to the argument:

Garre—representing the gypped law firm—pounded on the history and purpose of bankruptcy law, essentially arguing that Appling is gaming the system.

Saying “I’ll pay you with my future tax return” and not doing it is fraud, plain and simple.

Justice Elena Kagan’s question showed Garre wasn’t making much headway with that:

KAGAN: But which says more about your financial condition, Mr. Garre? Um, “I’m above water.”  That’s one option. Or “I have a bank account with a billion dollars in it.”

GARRE: Well, I — I think the “I’m above water” tells you about your financial condition. The “I” — because it tells you about your overall financial status. The “I have a bank act with a billion dollars in it” tells you have a lot of money.  It doesn’t tell you anything about your debts. Really rich people sometimes have really big liabilities. Ask Bernie Madoff. And so that does not give you a sense of overall financial status.

The other side, Appling’s lawyer, had a much, much easier time of it. The circuits courts are split on this matter, so clarity is needed.

Finally today, the case of a Brazilian man who overstayed his visa.

Wescley Fonseca Pereira was supposed to leave the U.S. in December 2000.

He did not. Instead, he moved to Martha’s Vineyard, where he’s been ever since taking care of wealthy people’s lawns.

Pereira had a brush with the law in 2006. A policeman arrested him for driving under the influence. While being detained on that charge, the Department of Homeland Security handed him a notice to appear for deportation proceedings at an unspecified time. It said the specific day remained, in the words of the notice, “to be set.”

When the immigration court settled upon the date, it put the specifics in the mail. But Pereira never received that notice, and he didn’t show up for the deportation hearing. The hearing went forward in Pereira’s absence and the judge ordered him deported.

Flash forward to 2013, and Pereira’s still on the Vineyard. He has a second brush with the traffic court, where that deportation order is waiting for him.

But Pereira wants to appeal the deportation order.

He points to a law that says if an illegal immigrant is in the country for ten years or more, that person can appeal deportation rulings.

Pereira says if you don’t count that 2006 notice to appear, he meet that 10-year continuous presence rule.

And that 2006 notice shouldn’t count because it didn’t have the time and date for the hearing on it.

So this dispute comes down to whether a faulty notice to appear is still enough to end that “continuous ten-year presence” requirement.

David Zimmer represents Pereira:

PEREIRA: It’s hard to see that it could be a Notice to Appear when it didn’t actually tell Mr. Pereira when to appear and when to do anything.

On the other side, the federal government’s lawyer, Frederick Liu. He argued nit-picking the details is not productive:

LIU: The statutory text reflects the judgment that an alien shouldn’t be able to continue claiming credit for being in the US once the government has told the alien it intends to remove him. With or without a hearing date, a Notice to Appear does just that.

Justice Breyer wondered what all the difficulty was about. Why isn’t the date and time included? You’ll hear two government initialisms, BIA and DHS. BIA is the Board of Immigration Appeals, and DHS is the Department of Homeland Security.

BREYER: So I look for the reason. What’s the reason they don’t want to put in the Notice to Appear? And I notice the former chairman of the BIA said there used to be a process called — it was called interactive scheduling… It meant that a human being who was over at DHS would go to his computer, found out what dates were available, and fill them in the Notice to Appear. Now that wouldn’t seem too tough.  We do have computers today. It would seem to be possible…

Liu said something about how that system just didn’t work out. And he got support from Chief Justice John Roberts, who revealed an understanding of how bureaucracy often works:

ROBERTS: Then I suppose if we rule against you, you’ll just say: Okay, we’ll put a date in, and if it turns out we can’t make that date, we’ll move it back another six months.  And if it turns out we can’t do that, and—and—in short, I’m not sure what that would accomplish.

Overall, it seemed most justices leaned toward Pereira’s side of things. Pereira is probably feeling good about his chances of fighting deportation.

And that’s this week’s Legal Docket.  

(AP Photo/J. Scott Applewhite) The Supreme Court is seen in Washington, Friday, April 20, 2018. 

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