The Solicitor General and Indian Law

The Senate just confirmed the nomination of Harvard Dean Elena Kagan as U.S. Solicitor General. The Solicitor’s Office, home the of the so-called “Tenth Justice,” has a great deal to say about Indian law. In particular, in Indian law cases not directly involving the United States as a party, the Solicitor General will often file an amicus brief on the merits, and the Court often invites the Solicitor to opine on whether or not to accept an Indian law cert petition. The SG’s recent briefs are here.

During the eight years of the Bush Administration, the U.S. Solicitor General’s Office filed 10 invitation and amicus briefs, covering 8 total cases. Of the 10 briefs, five supported tribal interests strongly, with another two partially supporting tribal interests. Interestingly, of the five strongly pro-tribal positions taken by the SG, the Supreme Court only agreed with the SG’s position once. The Court agreed to deny the cert petition filed by Teck Camino Metals in the 2007 Term in accordance with the SG’s position, but rejected the SG’s positions in Plains Commerce Bank, Wagnon, and Sherrill (twice — one on the merits and one at the petition stage).

This result is fairly remarkable, and worth more study. I wonder if the SG’s views have so little weight with the SCT in any other area of law, and if these outcomes are part of a longer trend in Federal Indian Law.

Here is the quick survey of the Solicitor’s amicus briefs and invitations, the position taken, and the impact of the brief during the Bush Administration:

2008 Term

Hawaii v. Office of Hawaiian Affairs — amicus brief at merits stage — opposing Native Hawaiian interests (technically filed during Obama tenure) — no outcome yet

2007 Term

Teck Camino Metals v. Pakootas — invitation brief at petition stage — opposing grant and favoring tribal interests — cert denied

Plains Commerce Bank v. Long Family Land & Cattle Co. — amicus brief at merits stage — favoring tribal interests, and participating in oral argument on behalf of tribal interests — loss on merits

2006 Term

Murphy v. Oklahoma — invitation brief at petition stage — disfavoring tribal interests (more or less) — petition denied

2005 Term

Wagnon v. Prairie Band Potawatomi Nation — amicus brief at merits stage — favoring tribal interests — loss on merits

2004 Term

Sherrill v. Oneida Indian Nation — amicus brief at merits stage — favoring tribal interests — loss on merits

2003 Term

Sherrill v. Oneida Indian Nation — invitation brief at petition stage — favoring tribal interests, recommending cert denial — cert granted

South Florida Water Management District v. Miccosukee Tribe — amicus brief at merits stage — disfavoring tribal interests — (mostly) tribal loss on merits

2002 Term

South Florida Water Management District v. Miccosukee Tribe — invitation brief at petition stage — disfavoring tribal interests but recommending denial — cert granted

Inyo County v. Bishop Paiute — amicus brief at merits stage — (mostly) disfavoring tribal interests — (mostly) a loss for tribal interests

2001 Term

No amicus or invitation briefs filed

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