Frank Pommersheim’s wonderful paper on the amicus brief strategies in Plains Commerce Bank in the South Dakota Law Review (email me if you want a copy) is a starting off point for this (yet another) quick study of Supreme Court adjudication, as is the recent short paper on the rise of the citation to amicus briefs in the Roberts Court (via How Appealing).
In short, the Court pays attention to amicus briefs siding with the tribes, discussing them at length, and rejecting the pro-tribal interest arguments uniformly.
Let’s begin with the case name that cites to an amicus brief, and then perhaps a quote from the opinion:
United States v. Jicarilla Apache Nation:
We cannot agree with the Tribe and its amici that “[t]he government and its officials who obtained the advice have no stake in [the] substance of the advice, beyond their trustee role,” Brief for Respondent 9, or that “the United States’ interests in trust administration were identical to the interests of the tribal trust fund beneficiaries,” Brief for National Congress of American Indians et al. as Amici Curiae 5.
Carcieri v. Salazar:
From the majority opinion:
The Secretary and his amici also go beyond the statutory text to argue that Congress had no policy justification for limiting the Secretary’s trust authority to those tribes under federal jurisdiction in 1934, because the IRA was intended to strengthen Indian communities as a whole, regardless of their status in 1934. Petitioners counter that the main purpose of § 465 was to reverse the loss of lands that Indians sustained under the General Allotment Act, see Atkinson Trading Co. v. Shirley, 532 U.S. 645, 650, n. 1, 121 S.Ct. 1825, 149 L.Ed.2d 889 (2001), so the statute was limited to tribes under federal jurisdiction at that time because they were the tribes who lost their lands. We need not consider these competing policy views, because Congress’ use of the word “now” in § 479 speaks for itself and “courts must presume that a legislature says in a statute what it means and means in a statute what it says there.”
And yet again:
The Secretary and his supporting amici also offer two alternative arguments that rely on statutory provisions other than the definition of “Indian” in § 479 to support the Secretary’s decision to take this parcel into trust for the Narragansett Tribe. We reject both arguments.
***
Second, amicus National Congress of American Indians (NCAI) argues that 25 U.S.C. § 2202, which was enacted as part of the Indian Land Consolidation Act (ILCA), Title II, 96 Stat. 2517, overcomes the limitations set forth in § 479 and, in turn, authorizes the Secretary’s action. *** NCAI argues that the “ILCA independently grants authority under Section 465 for the Secretary to execute the challenged trust acquisition.”NCAI Brief 8. We do not agree.
One final time:
We hold that the term “now under Federal jurisdiction” in § 479 unambiguously refers to those tribes that were under the federal jurisdiction of the United States when the IRA was enacted in 1934. None of the parties or amici, including the Narragansett Tribe itself, has argued that the Tribe was under federal jurisdiction in 1934.
Same case, from Justice Breyer’s concurrence:
Third, an interpretation that reads “now” as meaning “in 1934” may prove somewhat less restrictive than it at first appears. That is because a tribe may have been “under Federal jurisdiction” in 1934 even though the Federal Government did not believe so at the time. We know, for example, that following the Indian Reorganization Act’s enactment, the Department compiled a list of 258 tribes covered by the Act; and we also know that it wrongly left certain tribes off the list. See Brief for Law Professors Specializing in Federal Indian Law as Amicus Curiae 22-24; Quinn, Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. Legal Hist. 331, 356-359 (1990).
Justice Stevens in dissent even cited an amicus brief from below in the same case:
Indeed, the Secretary has invoked his § 465 authority to take additional land into trust for the Miccosukee Tribe despite the existence of a statute authorizing and directing him to acquire certain land for the Tribe. See Post-Argument En Banc Brief for National Congress of American Indians et al. as Amici Curiae 7 and App. 9 in No. 03-2647(CA1).
Plains Commerce Bank:
From the majority:
The Longs’ discrimination claim challenges a non-Indian’s sale of non-Indian fee land. Despite the Longs’ attempt to recharacterize their claim as turning on the Bank’s alleged “failure to pay to respondents loans promised for cattle-raising on tribal trust land,” Brief for Respondents 47, in fact the Longs brought their discrimination claim “seeking to have the land sales set aside on the ground that the sale to nonmembers ‘on terms more favorable’ than the bank had extended to the Longs” violated tribal tort law, 491 F.3d, at 882 (quoting Plaintiffs’ Amended Complaint, App. 173). See also Brief for United States as Amicus Curiae 7.
And:
The tribal tort law the Longs are attempting to enforce, however, operates as a restraint on alienation. It “set[s] limits on how nonmembers may engage in commercial transactions,” 491 F.3d, at 887—and not just any transactions, but specifically nonmembers’ sale of fee lands they own. It regulates the substantive terms on which the Bank is able to offer its fee land for sale. Respondents and their principal amicus, the United States, acknowledge that the tribal tort at issue here is a form of regulation. See Brief for Respondents 52; Brief for United States as Amicus Curiae 25–26; see also Riegel v. Medtronic, Inc., 552 U.S. 312, 324, 128 S.Ct. 999, 1008, 169 L.Ed.2d 892 (2008). They argue the regulation is fully authorized by the first Montana exception. They are mistaken.
And a third time (the U.S. is cited all three times — no other pro-tribal amicus brief is cited in the majority):
Finally, we address the Longs’ argument that the Bank consented to tribal court jurisdiction over the discrimination claim by seeking the assistance of tribal courts in serving a notice to quit. Brief for Respondents 44–46. When the Longs refused to vacate the land, the Bank initiated eviction proceedings in South Dakota state court. The Bank then asked the Tribal Court to appoint a process server able to reach the Longs. Seeking the Tribal Court’s aid in serving process on tribal members for a pending state-court action does not, we think, constitute consent to future litigation in the Tribal Court. Notably, when the Longs did file their complaint against the Bank in Tribal Court, the Bank promptly contended in its answer that the court lacked jurisdiction. Brief for United States as Amicus Curiae 7. Under these circumstances, we find that the Bank did not consent by its litigation conduct to tribal court jurisdiction over the Longs’ discrimination claim.
The PCB dissent cited the Cheyenne River Sioux Tribe amicus brief:
This case, it bears emphasis, involves no unwitting outsider forced to litigate under unfamiliar rules and procedures in tribal court. Cf. Nevada v. Hicks, 533 U.S. 353, 382–385, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (SOUTER, J., concurring). Hardly a stranger to the tribal court system, the Bank regularly filed suit in that forum. See Brief for Cheyenne River Sioux Tribe as Amicus Curiae 29–31.
Wagnon v. Prairie Band:
From the majority:
Turtle Talk 