Turtle Talk

Today, Michigan State University’s Indigenous Law and Policy Center hosts its Seventh Annual Indigenous Law Conference, “Persuasion and Ideology: Politically Divisive Cases in Appellate Courts.”

My talk today is titled, “The Elusive Fifth Vote.” The idea for this talk derives from exchanges I had with Phil Frickey after the Supreme Court decided Plains Commerce Bank 5-4 in 2008. We had talked about co-authoring a paper with the hope of identifying a fifth vote in favor of tribal interests in a future case. Unfortunately, Phil walked on before we could write this paper.

The longer paper will focus on the five Justices that voted against tribal interests in Plains Commerce Bank. While the composition of the Court has changed since this case, the five Members in the majority remain on the Court. They are Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito. Interestingly, the toughest questioning in the PCB case came from Justice Scalia to the Bank’s attorney Paul Banker, who had no answer as to why the Bank (which had drafted the loan documents at issue) never made clear what the proper venue (state or tribal) would be in a foreclosure action. Regardless, Scalia joined Chief Justice Roberts majority opinion.

These five Justices form a block that is a tough nut to crack in many cases. Four of them are truly reliable votes in virtually all constitutional law cases, with Justice Kennedy the only one of the five likely to stray on occasion. This, of course, puts Justice Kennedy in the apparent role of swing vote, even if he is really a very conservative Justice.

But Justice Kennedy isn’t necessarily a swing vote in Indian law cases. As part of the preliminary research into the paper, Phil and I concluded Kennedy voted against tribal interests even more than Scalia. Moreover, we don’t have much of a track record to go on in regards to Chief Justice Roberts and Justice Alito.

Nonetheless, at least for this Term, my suspicion is that Justice Kennedy will be the most important Justice in the Indian law cases (I’m assuming there will be more than one) in this Term.

Justice Kennedy has sort of idiosyncratic views in two areas of constitutional law relevant to Indian law. First, Justice Kennedy has seems to tie some of his constitutional law reasoning to social contract theory. He has done so several times explicitly in Indian law cases, most notably the cases relating to tribal criminal jurisdiction over nonmembers (Oliphant, he was a Ninth Circuit judge in the case; Duro; and Lara). In Justice Kennedy’s important opinion in Hamdan, he argued that Congress should not have authority to contract away the rights of American citizens.

Arguably, Justice Kennedy’s surprise dissent in Wagnon may also have had important social contract theory implications, especially if he was persuaded by Kansas’s bad faith in unilaterally terminating a tax agreement with the Prairie Band Potawatomi Nation prior to Kansas imposing its taxes on the Nation.

These views don’t necessarily bode well for tribal interests in cases where Congress is recognizing additional tribal court authority, such as in the Duro Fix or the Tribal Law and Order Act. But if a tribe guarantees effective criminal procedure rights (e.g., right to counsel, etc.), and allows or mandates participation by resident nonmembers on jury pools (as more and more tribes are doing), then Kennedy’s social contractarian concerns begin to fade away.

It will be curious to see how tribal advocates attempt to attract Justice Kennedy’s vote, if a tribal tax case or a tribal gaming compact case reaches the Court. At least in Wagnon, Justice Kennedy seemed to agree with Justice Ginsburg that Kansas was playing dirty pool in terminating a tax agreement. Would Kennedy feel the same in the California gaming compact case, where Gov. Schwarzenegger was found to have negotiated in bad faith? Would Kennedy find salient the actions of a nonmember in playing dirty pool with a tribe in a contract/lease arrangement, as in the Water Wheel case? Perhaps he would if tribal advocates seek his vote in that manner.

A second area of interest is Justice Kennedy’s executive power jurisprudence. Justice Kennedy has frequently drifted away from the conservative block in the recent war powers cases involving Guantanamo Bay detainees. This may be important because the Court may have a case or three about the current state of the federal-tribal trust relationship. Generally, tribal advocates don’t frame trust cases in the vein of executive powers, but perhaps now is a good time to start. There is definitely linkage between federal executive war powers and Indian affairs. All you have to do is read one of the so-called torture papers written by John Yoo, which cited to numerous examples of executive power in the context of Indian wars.

In recent years, as the Cobell litigation winds down, there seems to be a move by the Dept. of Justice to actively limit the federal-tribal trust relationship, possibly as a result of being burned for so many years by the Cobell plaintiffs. But there is true conflict between and within Justice Department lawyers and Interior (the client, after all) on many of these questions. Would Justice Kennedy see abuses of executive power (as he had in the war powers cases) where Justice overrules Interior’s positions on the trust relationship?

I’m just speculating, but it seems worthwhile to pursue Justice Kennedy’s vote.