Of course, too much will be read into this. The last time this happened, when Justices Breyer and O’Connor visiting the Spokane and Navajo tribal courts at the behest of NAICJA, it was part of a program that culminated in a symposium at the National Judicial College. Justice Alito’s visit did not seem to have the same educational focus, but is a very good thing anyway. The more the Supreme Court Justices know, the better.
Thanks to Peter Vicaire’s Supreme Court “report card,” we know that Justice O’Connor sat in on eight Indian law cases after her visit. She voted in favor of tribal interests in five of those cases (Chickasaw, Navajo, White Mountain Apache, Lara, and Cherokee Nation v. Leavitt), and against three times (Inyo County, Sherrill, and Wagnon). As a swing Justice, her vote was significant — tribal interests won three of the five cases in which SOC voted in their favor, and lost all three in which she didn’t. Prior to the July 2001 visit, she voted in favor of tribal interests in 9 out of 39 cases (23 percent).
Justice Breyer has voted in favor of tribal interests in only 4 of 13 cases since July 2001 (31 percent), a markedly worse record than SOC’s post-visit record. His positive votes were in White Mountain, Lara, Cherokee Nation, and Plains Commerce Bank (tribal interests won three of those). His negative votes were in Chickasaw, Navajo, Sherrill, Wagnon, Carcieri, Hawaii, Navajo II, Tohono O’odham, and Jicarilla (tribal interests lost all of these cases; none of them were even close). His pre-visit record was about the same, maybe a little better — 5 out of 19 (26 percent). His most interesting vote was in Plains Commerce, where he added a fourth vote in a tribal court jurisdiction case. Maybe his improved knowledge about tribal courts played a role? His opinion in Carcieri was a nice touch as well, an effort to limit the import of the outcome.
All in all, the track record of any Justice isn’t going to change a whole lot unless the kinds of cases changes. We keep seeing the same kinds of claims — demands for immunity from state taxation, suits for money damages against the United States, and the like. Yes, the facts of the cases are incredibly compelling, and demand real justice (at least the claims against bad actor governments), but they’re losers more often than not in Supreme Court no matter who you are (the lower courts is another matter). The only winning cases are treaty rights and statutory interpretation cases, and even those are just toss-ups (but even toss-ups sound good, don’t they?).
In the future, tribes asserting a kind of progressive, creative, and necessary kind of sovereignty are going to win in the Supreme Court. Visits by Justices to Indian country to learn about tribal law enforcement will give them something useful to think about when presented with claims about how it is almost impossible for the feds to prosecute non-Indian violent crime. Visits to learn about Indian schools (like Red Cloud) and tribal governance overall are helpful now, too (and isn’t there a self-governance cert petition pending right now??!?!). Learning about how every dime of the profits of tribal enterprises goes to fund Indian education, public safety, housing, jobs, etc. (and not to individual per caps, for example) might be persuasive in a sovereign immunity case or something.
So Justice Alito’s visit might be illuminating for him, give him and his colleagues needed context, but only in the right cases.
Turtle Talk 