The SCOTUSblog commentary on the United States v. Tohono O’odham Nation decision — specifically the part where the commentator notes the Court’s “apparent disregard for minimalism” — provoked us to comment on judicial minimalism (or the lack thereof) in Indian law. With all due respect to Prof. Krakoff’s paper (50AmULRev1177), which argued that the Rehnquist Court used judicial minimalism to undermine the foundations of Indian law, a little judicial minimalism would look good to tribal advocates right about now.
In addition to the TON case, the Roberts Court has gone out of its way to pronounce much broader common law rules and decide larger questions first instead of deciding cases on narrower grounds.
- Carcieri v. Salazar — The Court granted cert on two questions, the first of which was whether the Rhode Island Land Claims Settlement Act excluded the Narragansett Tribe from eligibility for Secretarial trust acquisitions under IRA Section 5. Instead of deciding that question in the negative, which they could have done, the Court jumped over that question and chose to offer an opinion (without actually answering anything, except as it related to the Narragansetts) about the broader question of whether tribes not federally recognized in 1934 were eligible.
- Carcieri (again) — Even more, the Court could easily have remanded to the lower court for determination on whether the Narragansetts were “under federal jurisdiction” in 1934. Instead, the Court made a pronouncement that they were not, without allowing anyone to even offer evidence on the question.
- Sherrill v. Oneida Indian Nation — Instead of deciding whether the Second Circuit’s common law decision on the tax immunity of Oneida-owned fee lands was valid, the Court jumped way ahead of the parties and decided the claims were barred by laches, an argument the New Yorkers had given up on 20 years earlier (again, without remanding for a factual determination on laches).
- United States v. Navajo Nation II — After the Court struck down a $600 million judgment favoring the Navajo Nation, the Court again took up the case when the Navajos successfully argued for the same judgment on a different legal theory. Like Carcieri, the Court basically told the Navajos and the lower courts that it meant what it said the first time and shut the door to any further arguments.
Well, there have been a few instances of minimalism.
- Plains Commerce Bank v. Long Family Land and Cattle Co. — It has always been our suspicion that the Court took this case as a vehicle for eliminating the last vestiges of the Montana exceptions, but instead the Court saw what a bad actor the Bank was and that the tribal court was fair to outsiders. So an easy 9-0 reversal became a 5-4 decision that changed nothing at all when it comes to the Montana exceptions.
- Hawaii v. Office of Hawaiian Affairs — The Court left intact the possibility that state law could authorize the stoppage of transferring ceded lands to private developers, and merely struck down the Hawaii Supreme Court’s federal law analysis.
- Madison County v. Oneida Indian Nation — The Court could have taken the County’s bait and decided the case despite the Oneidas waiver of sovereign immunity, but GVR’d the case instead.
So, what will the Court do with Jicarilla Apache Nation?
Turtle Talk 