PETITIONS OF THE WEEK

This week we highlight cert petitions that ask the Supreme Court to consider, among other things, the requirements for defendants to prove “Indian” status under the Major Crimes Act and the proper test for when two songs (here, “Soknudur” and “You Raise Me Up”) are substantially similar for copyright claims.

The requirements for “Indian” status under the Major Crimes Act

Oklahoma v. Wadkins presents the justices with the latest in a series of cases emerging out of their 2020 decision in McGirt v. Oklahoma.In McGirtthe justices ruled that land throughout much of eastern Oklahoma remains a Native American territory. Thus, Oklahoma did not have the power to prosecute Jimmy McGirt, an enrolled member of the Seminole Nation of Oklahoma, for three serious sexual offenses that took place in this area. The Major Crimes Act gives federal courts exclusive jurisdiction to try certain major crimes committed by an “Indian” in “Indian country.” In April, the justices will hear oral argument in Oklahoma v. Castro-Huertain which they will decide whether Oklahoma has authority to prosecute non-Indians who commit crimes against “Indians” in “Indian country.” In granting this case, the justices declined Oklahoma’s invitation to consider overruling McGirt. This past January, the justices in Parish v. Oklahoma declined to review a decision from the Oklahoma Court of Criminal Appeals that McGirt does not apply retroactively to convictions that were final when McGirt was announced.

In WadkinsOklahoma asks the Supreme Court to clarify the requirements that a criminal defendant must satisfy to qualify as an “Indian” under the Major Crimes Act. After McGirtthe Oklahoma Court of Criminal Appeals remanded the case of Robert Eric Wadkins (whom a jury had convicted of first-degree rape and kidnapping) to the state trial court to determine whether Wadkins was an “Indian” and the crime occurred in “Indian country” .” Although the trial court determined that Wadkins was not an “Indian,” the Oklahoma appellate court reversedon the ground that Wadkins had enrolled as a member of the Choctaw Nation (after his conviction), had a Certificate of Degree of Indian Blood card, and had received health services based on that card. In its petitionOklahoma asks for a clear test from the Supreme Court, including with a bright-line rule that one must be enrolled with a tribe at the time of a crime.

When two songs are substantially similar for copyright claims

In Johannsongs-Publishing, Ltd. v. Peermusic Ltd.the justices face a question of when two musical works are substantially similar for purposes of a copyright claim. Johannsongs, which owns the rights to Johann Helgason’s Icelandic song “Soknudur,” claims that “Your Raise Me Up,” composed by Rolf Løvland ( and popularized by Josh Groban), infringes its copyright. Under an “ordinary observer” test, as used in the US Court of Appeals for the 2nd Circuit and other circuits, Johannsongs maintains that it has a winning claim. (Anecdotally, Johannsongs’s petition relates that when Groban performed “You Raise Me Up” at a concert in Iceland, the audience sang along with the words of “Soknudur.”) However, the US Court of Appeals for the 9th Circuit ruled against Johannsongs, affirming the district court’s “analytic dissection” and use of expert testimony under a more involved two-part extrinsic/intrinsic test.

These and other petitions of the week are below:

Gonzalez v. United States
21-1191
Issue: Whether federal district courts exceed their statutory or Article III power by issuing proclamations that their dismissal “counts as a ‘strike’ within the meaning of 28 USC § 1915(g)” even though that question is not presented and, if so, whether such ultra vires proclamations are immune from appellate review.

Oklahoma v. Wadkins
21-1193
Issue: What requirements a criminal defendant must satisfy to qualify as an “Indian” under the defendant Major Crimes Act.

Johannsongs-Publishing, Ltd. v. Peermusic Ltd.
21-1196
Issue: Whether, in a copyright infringement case, when deciding whether two musical works are substantially similar, the courts should apply the ordinary-observer test as is the rule in the US Court of Appeals for the 2nd Circuit, or whether the courts should apply the two-part extrinsic/intrinsic test as is the rule in the US Court of Appeals for the 9th Circuit.

KK-PB Financial, LLC v. 160 Royal Palm, LLC
21-1197
Issues: (1) Whether the dismissal of an appeal of a bankruptcy court confirmation order based on “equitable mootness” renders an appeal from the same case “constitutionally moot,” even though a possibility of relief for the appellant still exists; and (2) whether the judge-made doctrine of “equitable mootness” in the context of bankruptcy appeals – which has been used to dismiss appeals despite the presence of federal jurisdiction and the existence of live disputes – should be rejected or at least subject to a requirement to conduct a preliminary review of the merits of the appeal.