Justice Stevens’ retirement this summer allows us a chance to review his legacy in relation to federal Indian law and policy. Justice Stevens ascended to the Supreme Court as the sole appointee of President Ford in late 1975. He voted in exactly 100 cases related to Indian law and tribal interests during that period.
Loosely speaking, Justice Stevens is the sitting Justice most likely to support tribal interests in the last decade, but his voting record in the 1980s and 1990s was overwhelmingly opposed to tribal interests. His seeming reversal in this context is fairly remarkable.
Justice Stevens generally speaking favored tribal interests in treaty rights cases and statutory interpretation cases (less so), but was a serious opponent in tribal immunity and taxation cases.
Overall voting record: 31 votes in favor of tribal interests; 63 votes against; and 7 votes unclassifiable.
Voting from 1976-1983: 14 votes in favor; 20 votes against; 1 unclassifiable
Voting from 1985-2000: 9 votes in favor; 41 votes against; 4 unclassifiable
Voting from 2001-2009: 8 votes in favor; 2 votes against; 1 unclassifiable
Important Indian Law Opinion Favoring Tribal Interests by Stevens, J.
Washington v. Fishing Vessel Assn (U.S. v. Washington) (1979): Justice Stevens headed a 6-3 majority upholding Judge Boldt’s 50-50 split in Indian/non-Indian fishing rights in the Stevens Treaties (what a coincidence!) case. Justice Stevens’ footnote suggesting that tribal fishers would be very unlikely to meet the 50 percent capacity reserved to them, later scholarship demonstrated, perhaps swayed enough of the Court to affirm Judge Boldt’s rule in pertinent part.
Well, that’s about it for significant opinions for the Court authored by Justice Stevens favoring tribal sovereignty.
Brendale: Justice Stevens authored the plurality opinion, joined only by one other Justice (O’Connor), splitting the baby in this tribal regulatory authority case. He held that the tribe had authority to assert land use regulatory authority over non-Indians and non-Indian lands in the “closed” part of the Colville Reservation, but not in the “open” part of the reservation. This confusing decision likely has no import after cases like Strate and Hicks.
Justice Stevens authored dissents in several cases favoring tribal sovereignty, especially in recent years.
Colorado River Water Dist. v. United States (1976): Justice Stevens’ first Indian law opinion, a solitary dissent arguing that federal courts retained authority to adjudicate federal and tribal water rights, despite the McCarran Amendment granting state court jurisdiction over water rights cases. Also dissented in Arizona v. San Carlos Apache (1983), a related case.
Delaware Business Committee v. Weeks (1977): Another solitary dissent, this time favoring Indian claimants.
Seminole Tribe v. Florida (1996): Justice Stevens wrote the lead dissent in this critical (seminal?) 11th Amendment case re: the Indian Gaming Regulatory Act.
Rice v. Cayetano (2000): Not really an Indian law case, but Justice Stevens wrote the dissent favoring the rights of the Native Hawaiians.
Nevada v. Hicks (2001): Concurred in the result, but would have held that tribal courts do have jurisdiction over Section 1983 claims (just not against state officers)
Inyo County (2003): Justice Stevens wrote a concurring opinion arguing that tribes should be able to sue under Section 1983, but that tribal sovereign immunity is not a constitutional right protected by the statute.
Sherrill (2005): Justice Stevens wrote a solitary dissent arguing that the Court had once before held that laches defenses do not apply to federal and tribal land claims, and though he had dissented from that earlier result, he now would hold under stare decisis principles that laches did not apply here.
Carcieri (2009): Justice Stevens wrote a powerful dissent, one of his finest in Indian law, but once again, was the lone vote in favor of the Narragansett Tribe.
Important Indian Law Opinions Rejecting Tribal Interests Authored by Justice Stevens
Prior to the seemingly dramatic turn-around by Justice Stevens in 2001 or so, he frequently wrote majority and dissenting opinions disfavoring tribal interests.
Cotton Petroleum (1989): Easily the most damaging majority opinion Justice Stevens authored. This case can be (and has been) said to have been a fundamental change in the Court’s Indian law preemption doctrine. The Court held that states have authority to tax non-Indian-owned businesses even where the activities are occurring on tribal trust or reservation land and where the tribe has its own taxes on the non-Indians and where the state tax would effectively destroy the tribal economic interest in the activity.
Justice Stevens also authored the majority opinion in the following cases that disfavored tribal interests: Puyallup Tribe (1977); National Farmers Union (1985) (but also rejected an Oliphant-style rule in civil jurisdiction cases); Mountain States Telephone (1985); Oregon v. Klamath (1985); Catawba (1986); and Milhelm Attea (1994).
Justice Stevens wrote the dissents (often scathing dissents in a trademark style) in the following decisions that form the remainder of the bedrock of Indian law favoring tribal interests — Bracker (1980); Merrion (1983); Oneida II (1985); Iowa Mutual (1987); Cabazon Band (1987); Holyfield (1989); Citizen Potawatomi (1991); and Kiowa Tribe (1998).
A Tradition of Dissent
Justice Stevens frequently dissented — 29 times in 100 cases.