This is an important report for tribal leaders and advocates to read. From the introduction:
Now in existence for ten years, the Tribal Supreme Court Project can look back to review the degree to which its work has been effective. From OT01 through OT10, several developments are notable. First and foremost is the win-loss record for Indian tribes before the Court. Figure 1 of the Report is a table of the Indian Law Cases Where Certiorari Was Granted. Overall, the win-loss percentage has remained the same with the Tribes winning only about 25% of their cases. However, under the Rehnquist Court (OT01-OT04), Indian tribes increased their winning percentage to greater than 50%—winning 4, losing 3, and 2 draws in 9 Indian law cases heard on the merits. This winning percentage was a vast improvement from a deplorable winning percentage of 20% in the past. The work of the Tribal Supreme Court Project appeared to be paying major dividends. But in the past six terms of the Roberts Court (OT05-OT10), Indian tribes have witnessed their winning percentage plummet to 0%—losing all 7 cases argued on the merits.
A few comments:
- The Supreme Court outcomes aren’t the whole story. The TSCP has been very successful in two areas — organizing amicus brief strategy and getting cert denied in several cases — although the Project is just one player in the process (the OSG, the tribal parties, and others are often as or more important). Last Term’s dismissal of the Madison County petition was a major success.
- Bringing in members of the Supreme Court “Bar” has been critical in limiting the damage to tribal interests. David Fredericks’ work, for example, in Plains Commerce Bank may have changed that case from a potential disaster for tribal jurisdiction purposes to a 5-4 heartbreaker (or, a case that really didn’t decide anything). Names matter to the Supreme Court (well, as does quality of advocacy, too, to be sure). Of course, there’s an arms race and tribal interests are now facing the Ted Olsons and Paul Clements of the world, so in some ways its a wash. In fact, this may be a reason why there have been no additions to the First Thirteen American Indians to argue before the Supreme Court since 2001.
- The requirements for success in the Supreme Court for tribal interests remain (as they probably always have): (1) the federal government’s participation as a party or an amicus in support of tribal interests and (2) treaty or statutory interpretation cases. The Rehnquist/Roberts Courts are clearly not common law courts, unlike the Warren/Burger Courts, and that heavily disfavors federal Indian common law claims. And more and more, as the federal government’s conflicts within the trust responsibility become almost too large to handle, the effectiveness of the federal government’s support in Supreme Court advocacy as an amicus is waning considerably.
- Our late, departed friend David Getches was the great scholar on Supreme Court jurisprudence, but he also said (as did Rennard Strickland) that the future of Indian law is in tribal law and in tribal bureaucratic and administrative advocacy. In many ways, Supreme Court litigation is the reality TV of American Indian law, surreal and wholly unrepresentative of what tribes are doing now.