Turtle Talk

As Indianz reported yesterday, the Second Circuit has once again applied the so-called Sherrill defenses to the New York land claims, this time to the Oneida Indian Nation (opinion here, briefs here).

First, it is all but certain that the once mighty Eastern land claims based on the Non-Intercourse Act violations of the late 18th century are all but dead. There may come a scenario where the Second Circuit sitting en banc or perhaps the First or Third Circuits issue an opinion declining to apply the Sherrill defenses to a NIA claim, but it’s doubtful. And even if that happened, Supreme Court review is virtually guaranteed (both because of the resulting split in authority and because of the state interests involved), with the predictable 5-4 result (assuming the tribal interests can persuade even that many to dissent).

Land claims and other claims based on treaty rights seem to have been successful for the time being, but time will tell on those claims.

Frankly, a new strategy is needed, and perhaps it’s time to review why the Eastern land claims were relatively successful in the first place. I believe it’s the federal government’s fear of United States liability for failing to prevent the fraudulent land sales and illegal tax foreclosures of Indian lands. The entire face of Indian land claim statutory law is based on this fear, including the 1982 statute passed to eliminate the statute of limitations for Indian land claims (28 U.S.C. 2415(a)). Maybe it’s time to remind Congress and the DOJ of the government’s potential liability, though the Cobell settlement, the American Indian farmer and African-American farmer settlements indicate Congress could really care less about liability. One thing in which the Rehnquist/Roberts Courts have been incredibly successful is preserving and bolstering federal and state (and even tribal) sovereign immunity.

Second, the NCAI/NARF Supreme Court Project seems to be at a crossroads. There’s no doubt that the strategies and organization brought by the Project now available to tribal interests in high-stakes litigation are impressive, but the results simply are not there. The only successes seem to be below the radar, in persuading tribal interests not to appeal bad decisions, for example. But those “bad decisions” are unlikely to be reviewed anyway, as the San Francisco Peaks decision demonstrates.

In my view, the Supreme Court bar is moving steadily toward being a court with a cult (or cults) of personality, with a relative few numbers of persons who are known by the Justices and their staff who exercise the real ability to persuade the Court in any given case (I’m not the originator of such a theory, and Richard Lazarus’s article is only the best known descriptor). The Project seems to understand this, and helps tribal interests locate and hire prominent members of the so-called Supreme Court bar (e.g, David Fredericks and Carter Phillips). Of course, there’s no guarantee that any of this will work, and so far it hasn’t. The SCT Project needs a permanent figurehead like Patricia Millet to be the face and intellectual leader of the Project to be a serious repeat player in the Supreme Court. Name recognition goes a long way, and the experience of a former SCT clerk or Office of Solicitor General attorney in reviewing a few thousand cert petitions would give Indian Country better insight on cases that have a chance to persuade a majority of the Court. Here’s hoping Indian Country is ready to take this action, and pay for it.

Otherwise, why bother going to court at all?