Turtle Talk

As could be predicted, the oral argument in United States v. Navajo Nation (transcript) did not go very well for the respondents. Adam Liptak noted that Justice Ginsburg showed unusual vigor in suggesting to Carter Phillips that her 2003 majority opinion in Navajo Nation I foreclosed any chance for a monetary award, implying that the first decision covered any possible relevant openings for the Nation.

And that’s how Acting SG Ed Kneedler opened, by arguing that the questions presented in Navajo I included all possible statutes that could generate an award-generating cause of action for the Nation. Before the Acting SG concluded his opening portion of the argument, Justice Ginsburg on page 18 was asking Mr. Kneedler the proper course of action once the Court rules in favor of the government. See Transcript page 18, lines 4-7. Kneedler suggested a reversal and a dismissal of the complaint below. No more remands, something perhaps the Court forgot to do before.

A few overall comments:

• The fact that Secretary Hodel and Peabody Coal played dirty pool continues to be of no import whatsoever to the Court. At least the New York Times paid attention. But I suspect the Court and the attorneys who argued this case believe that the Federal Circuit found the Navajo Nation to be such a compelling plaintiff that they were going to warp the law to benefit them. That’s a bad perception, and the Respondent’s counsel did nothing to change that perception.
• Until Justice Kennedy, on the government’s rebuttal, suggested that the SG gave “too cramped” a reading to Section 5 of the Navajo Hopi Rehabilitation Act (p. 49), the government had a very easy time of it. Justice Souter and Justice Stevens also pressed Mr. Kneedler here. Justice Souter seemed, though it’s hard to tell, satisfied with the respondent’s argument that the Rehabilitation Act requires more protections for the Navajos (p. 29). I would imagine one or two of these Justices might vote in favor of the Navajo Nation. But there’s a good chance that the Court will go 9-0 in favor of the government.
• Justice Breyer looks like he’ll go with the government as well. On page 37, lines 21-24, he suggests that the Rehab Act provides no greater hook upon which to hang the hook of liability than the IMLA that was insuffucient in Navajo I. Same at p. 43, lines 1-5.
• The Navajo Nation’s attorney, Carter Phillips, is a gas, but I suspect the Navajos aren’t laughing.  I think he knew his side never had much of a chance. He made several jokes, including one about needing a haircut to explain why he used a barber shop hypothetical (p. 28, no one laughed), repeated jokes about the testimony of former Interior Secretary Udall (p. 40-41, 46, which did elicit laughter), and one joke that appeared to be about the unusual character of this case — that the Navajos lost below, and came up with a new theory (p. 40, more laughter).

Overall, another tragic story of the United States and non-Indian-owned corporations taking advantage of an Indian tribe — what Mr. Phillips called an “outrage” on p. 47 — and getting away with it.