Turtle Talk

The Tribal Supreme Court Project will mark its 25th anniversary in Washington, D.C., on September 17-18, with a reception at the National Museum of the American Indian and a colloquium on Indian law jurisprudence, emerging legal issues, and Supreme Court strategy. Program and registration information is here.

The Project itself traces its origins to a gathering of Tribal leaders and advocates in Washington on the morning of September 11, 2001, a date that gives today’s anniversary reflection an additional historical resonance. Created by NCAI and NARF after Tribal interests had lost 82 percent of the Indian law cases decided by the Supreme Court over the preceding ten terms, the Project has since transformed the way Indian Country approaches Supreme Court litigation.

Over 25 years, it has monitored more than 550 cases, supported every major federal Indian law case argued before the Court, and built a network of more than 300 volunteers, including federal Indian law and Supreme Court practitioners, professors, and advocates. Its 25th Anniversary Report calculates that Tribes prevailed in 70 percent of their Supreme Court cases from the October Term of 2015 through the October Term of 2024. Those results reflect substantial work behind the scenes, including identifying dangerous cases, coordinating amici, strengthening briefing, connecting Tribal parties with Supreme Court specialists, organizing moot courts, and helping Indian country make strategic decisions about when, and when not, to seek Supreme Court review.

The anniversary therefore offers plenty to celebrate. But it also creates an opportunity to reflect on a different measure of Supreme Court advocacy: who gets to stand at the lectern.

In 2012, the American Indian Law Center brought together a group it called “The First Thirteen”: thirteen Native attorneys who made sixteen oral arguments in federal Indian law cases before the Supreme Court from 1980 through 2001. They included:

• Rodney Lewis, Gila River Indian Community, in Central Machinery Co. v. Arizona State Tax Commission (1980) (Tribal win);
• Arlinda Locklear, Lumbee Tribe, in both Solem v. Bartlett (argued 1983) (Tribal win) and County of Oneida v. Oneida Indian Nation (argued 1984) (Tribal win);
• Raymond Cross, MHA Nation, in the two Three Affiliated Tribes v. Wold Engineering cases (argued 1983 and 1986) (Tribal wins in both appearances);
• Jeanne Whiteing, Blackfeet-Cahuilla, in Montana v. Blackfeet Tribe (argued and reargued 1985) (Tribal win);
• Terry Pechota, Rosebud Sioux, in United States v. Dion (1986) (Tribal loss for Tribal/treaty rights position);
• Marilyn Miles, Kickapoo, in Lyng v. Northwest Indian Cemetery Protective Ass’n (argued 1987) (Loss for Indian religious practice position);
• Dale White, Mohawk/Akwesasne, in California v. United States (argued 1988) (4-4 vote was favorable for the Tribal respondents);
• Susan Williams, Sisseton-Wahpeton Dakota, in Wyoming v. United States (argued 1989) (4-4 vote was favorable for the Tribal respondents);
• G. William Rice, United Keetoowah Band of Cherokee Indians, in Oklahoma Tax Commission v. Sac and Fox Nation (argued 1993) (Tribal win);
• Martin Seneca, Seneca Nation, in Hagen v. Utah (argued 1993) (Tribal loss);
• Melody McCoy, Cherokee Nation, in Strate v. A-1 Contractors (argued 1997) (Tribal loss);
• Heather Kendall-Miller, Native Village of Dillingham, in Alaska v. Native Village of Venetie (argued 1997) (Tribal loss); and
• S. James Anaya, Apache and Purépecha, in Nevada v. Hicks (argued 2001) (Tribal loss).

Across the fifteen distinct cases in which the First Thirteen argued, Tribal interests received favorable outcomes in nine, including seven outright wins and two 4-4 affirmances that left favorable lower court judgments in place. This resulted in 60 percent favorable outcome rate for the First Thirteen.

Six of the First Thirteen were Native women: Arlinda Locklear, Jeanne Whiteing, Marilyn Miles, Susan Williams, Melody McCoy, and Heather Kendall-Miller. Locklear argued twice, and Whiteing argued and reargued Montana v. Blackfeet Tribe — a remarkable level of Native women’s representation at the Supreme Court lectern for that era. Following their oral arguments in seven distinct cases, these six Native women received three outright Tribal wins and a fourth favorable result based on a 4-4 vote in Wyoming v. United States, resulting in favorable outcomes for Tribes or Tribal interests in 57.1 percent of their cases.

That history matters to me personally. When I was in college, I knew a Native woman who was attending Harvard Law School. I remember thinking that if she could do it, perhaps I could do it, too. Later, when I was in law school, I met Susan Williams and was deeply impressed by her career and by the fact that she had argued before the Supreme Court, successfully defending Tribal rights. Seeing Native women who had already done things I hoped someday to do made those possibilities feel real. That’s part of what representation does. Role models don’t just symbolize inclusion after opportunities have already been distributed. They help create the next generation of people who can imagine themselves pursuing those opportunities.

Since Jim Anaya argued Hicks on March 21, 2001, no Native attorney has argued before the U.S. Supreme Court. What followed was not a steady expansion of representation. It was a contraction.

Among lawyers arguing directly for Tribal parties during the Supreme Court Project era, I can only identify two women: Danielle Spinelli, who represented the Tohono O’odham Nation in 2010, and Patricia Millett, now a judge on the U.S. Court of Appeals for the D.C. Circuit, who represented the Match-E-Be-Nash-She-Wish Band (Gun Lake Tribe) in 2012. No woman has argued directly for a Tribal party since then. By contrast, five women made seven Supreme Court arguments on behalf of the United States in pro-Tribal or partly pro-Tribal positions during the same period.

The timing is remarkable. The Tribal Supreme Court Project was created at almost exactly the moment Native lawyers stopped appearing at the Supreme Court lectern. Over the next 25 years, Indian Country developed an increasingly sophisticated system for coordinating Supreme Court strategy. That professionalization has produced real benefits. But the same turn toward highly specialized Supreme Court expertise may also have made prior Supreme Court experience an increasingly powerful gatekeeping credential.

That isn’t an argument against specialized Supreme Court counsel. When a case could reshape sovereignty throughout Indian Country, retaining a lawyer with extensive Supreme Court experience is an entirely rational response to extraordinary risk. Indeed, one of the reasons the Project exists is that the consequences of a bad Supreme Court decision rarely stop with the particular Tribal Nation whose name appears in the caption. But prior experience can become the price of admission, even though no lawyer becomes an experienced Supreme Court advocate without first being given the opportunity to handle a consequential case.

That produces a difficult question for the Project’s next 25 years: Who receives the exceedingly rare opportunity to speak for a Tribe before the Supreme Court, and how often do those advocates reflect the communities whose interests they present?

Gender is only one dimension of the concentration of opportunity. Of the 40 advocates identified in the oral argument records for cases argued since September 2001 as representing Tribal parties, Tribal-aligned interests, or pro-Tribal positions, 31 appeared only once. A small group of repeat players, overwhelmingly men, accounted for a disproportionate share of the arguments.

The history of the First Thirteen suggests that this concentration isn’t inevitable. Seven of those thirteen had attended the American Indian Law Center’s Pre-Law Summer Institute, and seven had direct connections with NARF. Their emergence was itself a product of institution-building. AILC has continued that work through PLSI and its longstanding participation in the ABA’s Judicial Clerkship Program.

Developing a Native Supreme Court bar will require more of that institution-building: expanding pathways into judicial clerkships and appellate practices while creating meaningful opportunities for Native attorneys already practicing Indian law to write merits briefs, shape litigation strategy, participate in moot courts, serve as lead counsel, share argument time, and ultimately stand at the lectern. Indian Country shouldn’t have to choose between Supreme Court expertise and advocates drawn from Native communities, nor between specialized experience and accountability to Tribal clients.

The First Thirteen mattered not just because of the clients they represented and the doctrines they helped shape. They also made paths visible.

Twenty-five years after Hicks, that door has remained closed far too long.

The Tribal Supreme Court Project’s anniversary is therefore both a celebration of what coordinated advocacy has built and an opportunity to decide what Indian Country will build next, not only for the next generation of cases, but for the next seven generations of advocates.

Methodological note: The Supreme Court Project’s report identifies 36 federal Indian law cases heard and decided on the merits since the Project began. My review uses a broader universe of 38 cases involving Tribal parties or significant Tribal interests. The additional cases are South Florida Water Management District v. Miccosukee Tribe of Indians, which addressed the Clean Water Act, and United States v. Tohono O’odham Nation, which addressed 28 U.S.C. § 1500. Although the Project monitored and supported both cases, their holdings concerned generally applicable federal statutes rather than questions classified as distinctly federal Indian law. The advocate figures in this post are based on the broader 38-case dataset.