Tales from the Cert Pool: Justice Blackmun’s Papers on Cotton Petroleum

Cotton Petroleum Corp. v. New Mexico is one of the harshest outcomes in the modern era of Indian law cases decided by the Supreme Court. In this case, the Court held that states may tax non-Indian-owned businesses doing business in Indian Country, even where the tribe has imposed its own tax. In short, the states may double-tax non-Indians, effectively preempting tribal taxes on the tribe’s own land.

The recent uploading of Justice Blackmun’s papers on the internet offers a glimpse into the background of the case.

In Cotton Petroleum, two documents are available: The cert pool memo and Justice Blackmun’s docket sheet recording the votes of the Justices.

The Court decided to grant certiorari in this case over the recommendation of the cert pool memo to deny cert. Justices White, Stevens, O’Connor, and Blackmun voted to grant cert (in accordance with the Rule of Four, only four votes are required to grant cert), while Rehnquist, Brennan, Marshall, Scalia, and Kennedy voted to deny.

One interesting (and awful) tidbit from the cert pool memo is that the memowriter noted that the tribal interests weren’t represented in the litigation and that, importantly, Cotton Petroleum hadn’t introduced evidence about the impact of New Mexico’s tax on tribal sovereignty:

“As [New Mexico] and [state] amici explain, this Court’s precedents require a showing of actual impact on tribal interests in self-government before pre-emption will be found, and [Cotton Petroleum] failed to introduce evidence of such impact in this case.” Cert Pool Memo at 7.

As noted above, the impact of New Mexico’s tax on tribal sovereignty was devastating, but since Cotton Petroleum was never in a position to make the argument, it was never developed.

Moreover, in a case denied cert that same Term, Rodney, Dickason v. Revenue Division of New Mexico, the cert pool memowriter (Deborah Malamud of NYU) argued that “the Indian preemption framework serves a substitute for the now-repudiated doctrine that state law has no effect on Indian reservations…. As that doctrine was geographical in nature, perhaps it makes sense that those same limits should apply to its modern substitute.” Cert Pool Memo in Rodney, Dickason at 8-9. But, alas, the Court decided not to adopt such a workable bright-line rule.

More tales from the cert pool memos will follow over the next several weeks.

One thought on “Tales from the Cert Pool: Justice Blackmun’s Papers on Cotton Petroleum

  1. Deborah Malamud January 31, 2008 / 3:32 am

    Hi! My name’s Deborah Malamud too. But I’m not a lawyer; just a 7th grade student!

Comments are closed.