Turtle Talk

Now that the election is over, the commentaries on who President Obama might nominate to serve on the Supreme Court have begun in earnest. The crop of leading names, all of which is crazily speculative, are very exciting in general. There may be more Indian law judicial and practitioner experience in this group than ever before.

Here are a list of the more prominent names, taken from the ABA Journal’s list on page 63 of its November 2008 issue, and their import for Indian Country based on their experience in Indian law cases:

1. Judge Diane Wood

Judge Wood sits on the Seventh Circuit, which doesn’t hear very many Indian law cases, but she does have a significant track record.

She wrote the majority opinion in U.S. v. Long (2003), in which the court upheld the Duro fix prior to the Supreme Court’s decision in U.S. v. Lara. In Wisconsin v. EPA (2001), she wrote the majority opinion, in which the court held that the EPA’s decision to grant treatment-as-state status to the Sokaogon Chippewa Community was reasonable. In Sokaogon Chippewa Community v. Babbitt (2000), she wrote the majority opinion in a case the court held it was reasonable for the district court to reject the St. Croix Chippewa Tribe’s motion to intervene in a gaming case involving three other Wisconsin tribes. In Thomas v. United States (1999), she wrote the majority opinion holding that the LCO Chippewa Band’s tribal council was not a necessary party to a claim challenging the outcome of a Secretarial election. Most recently, in Burgess v. Walters (2006), she wrote the majority opinion upholding the State of Wisconsin’s action in committing an Indian based on the PL280 criminal/prohibitory — civil/regulatory analysis.

Without a doubt, Judge Wood’s opinions in her several Indian law cases demonstrate that she is very respectful to Indian tribes and to tribal sovereignty. Wisconsin and Long could have easily gone the other way. Even in the cases she were rules against tribal interests, she does not denigrate Indians and tribes in any way.

2. Seth Waxman

Mr. Waxman is another interesting choice for Indian Country. He has more experience in litigating federal Indian law cases than any of the others mentioned for a nomination. As the US Solicitor General under President Clinton, his name is appended to dozens of Indian law cases (e.g., Minnesota v. Mille Lacs, Idaho v. United States, other cases from 1997-2001), but he never argued an Indian law case before the Court during that time. However, since he’s been back in private practice he’s worked at least three Indian law cases — City of Roseville v. Norton (D.C. Cir. 2003), San Manuel Indian Bingo and Casino v. NLRB (D.C. Cir. 2007), and MichGO v. Kempthorne (D.C. Cir. 2008), all on behalf of the tribes involved in those cases.

His experience in Indian law is outstanding and, like Judge Wood, might help the Court see Indian law in a new light.

3. Dean Elena Kagan

Dean Kagan does not appear to have worked on any Indian law cases, but she did spend a great deal of time in the Clinton White House. She may have run across some tribal questions then, but I don’t know of any. Her experience as dean of Harvard Law School puts her in the position of managing the Oneida Chair at Harvard Law School.

4. Judge Sonia Sotomayor

Judge Sotomayor has written the majority opinions in two unexceptional Indian law cases, Catskill Development v. Park Place Entertainment (2008 ) and United States v. White (2001). Catskill Development involved the authority of the National Indian Gaming Commission to review and opine on gaming management contracts, and White involved the federal prosecution of Mohawk Indians for failure to report income to the IRS. Judge Sotomayor has some Indian law exposure, but not on anything controversial.