Turtle Talk

Justice Souter’s retirement at the end of this Term all but demands a recount of his voting record in Supreme Court cases involving federal Indian Law. He was part of the Court for nearly 20 Terms, and voted in 41 Indian law cases (for a list of Indian law cases, see our Supreme Court page). Excluding two votes in cases that are difficult to characterize (Negonsott and Youpee), Justice Souter voted for tribal interests 16 times and against them 23 times.

Several themes run through Justice Souter’s Indian law votes. He usually sided with tribal interests in the areas of treaty rights and treaty interpretation, as well as in trust cases involving the United States as a defendant. He also sided with tribal interests in federalism cases involving the 11th Amendment. But he typically ruled in favor of states and against tribal interests in tax cases, especially after the mid-90s, and in cases involving tribal jurisdiction over nonmembers.

Overall, he left an indelible footprint on federal Indian law. His legacy likely is not yet determinable. He only wrote four opinions for the Court, and six other opinions concurring or dissenting. Justice Souter will probably be best known in Indian law circles for his devastating concurring opinion in Nevada v. Hicks, but his overall record is relatively favorable to tribal interests. And, in our opinion, the Hicks concurrence served as a powerful wake-up call to tribal advocates who hadn’t noticed how far the Court had drifted away from tribal positions.

Justice Souter’s Indian law record can be divided into three loose phases. In the first phase, dating loosely from his first vote in Oklahoma Tax Commission v. Citizen Potawatomi to his powerful dissent in Seminole Tribe (see the Boston Globe article on this case), Justice Souter’s voting record was pretty good — 6 votes in favor of tribal interests and 4 against (excluding a couple cases that could be construed as ties). New-Justice Souter became close to Justice Blackmun in their few years together on the Court, and Justice Souter joined Justice Blackmun’s otherwise-solitary dissents in South Dakota v. Bourland and Hagen v. Utah. He voted three times against the Oklahoma Tax Commission (Citizen Potawatomi, Sac and Fox, and Chickasaw Nation). However, he wrote the majority opinion favoring the Indian Health Service in Lincoln v. Vigil, an administrative law case.

Justice Souter’s 11th Amendment jurisprudence seemed to shift during this period as well. He joined the majority in Blatchford v. Native Village of Noatak in 1991, but famously dissented in 1996’s Seminole Tribe.

The second phase, we believe, began in 1997’s Strate v. A-1 Contractors and likely ended with Hicks. During this period, Justice Souter voted with tribal interests 5 times, and against them 12 times. The Strate case is an important marker, as perhaps the entire Court shifted during that case as well. Strate is one of the few times the Court granted a cert petition filed by an Indian tribe in the last several decades (see my work on cert petitions). It seemed the Court likely was ready to reverse the Eighth Circuit’s holding that the MHA Nation’s tribal courts could not have jurisdiction over a nonmember defendant in a civil case, but instead the Court found unanimously in a Justice Ginsburg-authored opinion that the land upon which the case arose was not really Indian land, and therefore applied the Montana doctrine to affirm the Eighth Circuit. We may never know what exactly happened, but it’s clear there was some sort of shift in the moderate-liberal wing of the Court.

During the second period, Justice Souter firmly established himself with the moderate-liberal wing of the Court in the federalism cases — Idaho v. Coeur d’Alene Tribe and Idaho v. United States, in which he wrote the majority opinion in a difficult 5-4 case. He supplied a critical fifth vote in Minnesota v. Mille Lacs, but tribal interests lost his vote (and often all of the moderate-liberal wing) in Yankton Sioux, Venetie, Cass County, Blaze Construction, Rice v. Cayetano (though he did not join the majority), C&L Enterprises, and Atkinson Trading.

Disappointingly, Justice Souter wrote the majority opinion in Dept. of Interior v. Klamath Water Users, a FOIA case that ignored the special relationship between Indian tribes and Interior to hold that litigation memos passed between tribes and the department were subject to FOIA.

But Justice Souter’s special concurring opinion in Nevada v. Hicks will be most remembered. In Hicks, the Court held that tribal courts cannot have jurisdiction over state police officers sued by tribal members for civil rights violations. Justice Souter’s concurrence displayed deep skepticism that tribal courts could ever have jurisdiction over nonmembers, not just state officers. In a critical passage, he wrote:

Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts “mirror American courts” and “are guided by written codes, rules, procedures, and guidelines,” tribal law is still frequently unwritten, being based instead “on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices,” and is often “handed down orally or by example from one generation to another.” Melton, Indigenous Justice Systems and Tribal Society, 79 Judicature 126, 130-131 (1995). The resulting law applicable in tribal courts is a complex “mix of tribal codes and federal, state, and traditional law,” National American Indian Court Judges Assn., Indian Courts and the Future 43 (1978), which would be unusually difficult for an outsider to sort out.

Hicks, at 384-85 (Souter, J., concurring).

Justice Souter’s opinion provided tribal advocates real insight — for the first time, really — from the Court about the normative reasons why the Court had concern about tribal court jurisdiction over nonmembers. Justice Souter’s opinion selectively quoted Indian law scholars celebrating the diversity and creativity of tribal courts to find that tribal courts and tribal law is “unusually difficult to sort out” for nonmembers. His opinion quickly inspired Indian law scholars to begin studying tribal courts more thoroughly (see Bethany Berger’s work, for example, and my own work).

Justice Souter’s third phase starts with Chickasaw Nation v. United States and runs to the last Indian law case he decided — United States v. Navajo Nation (Navajo II). The Justice seems to have returned to his something approaching his earlier voting record. During this period, he sided with tribal interests 5 times, and against them in 7 times — although he offered a partial dissent in Carcieri v. Salazar and a reluctant concurrence in Navajo II.

In 2003, Justice Souter wrote the majority opinion in United States v. White Mountain Apache and the primary dissent in United States v. Navajo Nation (Navajo I), holding the United States to its word in these companion cases. In 2009, after the Navajo case returned the Court, he and Justice Stevens reluctantly voted to concur the with the majority against the Navajo Nation, but only because their position was in the minority in Navajo I. Justice Souter also joined the dissent in Plains Commerce Bank v. Long Family Land and Cattle, seemingly renouncing his Hicks concurrence and voting in favor of tribal court jurisdiction. Unfortunately, the Plains Commerce majority used his concurrence as one of the bases for its decision.

However, Justice Souter joined the majorities holdling against tribal interests in Inyo County, Sherrill, and Wagnon. Justice Souter’s questioning in Wagnon (oral argument link), asserting that there is likely no real governmental interest for tribal government businesses in operating casinos and selling cigarettes, etc., highlights an important theme that rights through his voting pattern over the later two phases of his tenure. Rarely did Justice Souter vote in favor of tribal interests in a taxation case during these periods, running from Milhelm Attea in 1994, Crow Tribe in 1998, Cass County and Blaze Construction in 1998, Amoco in 1999, and concluding with Wagnon in 2005.

Moreover, Justice Souter joined Justice Scalia in dissent in the all-important United States v. Lara. Lara affirmed that Congress can reverse the Court’s federal Indian law decisions — which generally are common law decisions — and statututorially recognize tribal authority over nonmembers. But Souter, J. believed that Congress had no such authority, and that tribal courts and Indian tribes cannot possess criminal jurisdiction over nonmembers, ever. While Lara seems to be a strong precedent for Indian Country (and for Congressional Indian affairs power), Justice Souter’s defection from the moderate-liberal wing undermined the viability of that precedent. Of the Lara majority, only Justices Stevens, Ginsburg, and Breyer remain on the Court. Justice Scalia is a remaining dissenter, and likely would be joined by Kennedy and Thomas, JJ. if a Lara II-style case returned to the Court. Chief Justice Roberts and Justice Alito are unknowns, as is Justice Souter’s yet-to-be-named replacement.

Justice Souter’s final legacy may be his dissenting opinion in Lara. Eventually, Congress will return more criminal jurisdiction over nonmembers to Indian tribes, perhaps as a means to reduce violence against Indian women. As happened with the Duro fix, that statute will find itself before the Supreme Court at some point. Will Justice Souter’s dissent in Lara serve as ammunition for Roberts, Scalia, and Thomas et al.?