Here are the results of last Friday’s (and early Saturday’s) poll in the second series of match-ups.
Match-up No. 5
(4) Talton v. Mayes defeats (29) Kiowa Tribe v. Manufacturing Technologies: 55 percent to 45 percent
The closest match-up of the second series of match-ups, featuring two cases that were both great victories for tribal sovereignty, and that also serve ironically as shackles to tribal sovereignty. Talton is always cited for the proposition that we should be wary of a perceived lack of American constitutional rights in tribal courts, and once served as the justification of the Indian Civil Rights Act. Kiowa is a great case recognizing tribal immunity off-reservation and in a commercial context, but fueled its own Congressional hearings on tribal immunity. And don’t forget those transaction costs next time the tribal government wants to lease some Xerox machines.
Match-up No. 6
(20) Merrion v. Jicarilla defeats (13) U.S. v. Mazurie: 93 percent to 7 percent
The biggest mismatch of the second series. Merrion‘s recognition of the power to tax (nonmembers, no less) wipes out the Mazurie holding, recognizing tribal inherent power sufficient to administer federal programs on delegation from Congress. Merrion is, so far, the only case younger than its match-up to survive out the eight match-ups.
Match-up No. 7
(5) United States v. Winans defeats (28) Oklahoma Tax Commission v. Sac & Fox Nation: 57 percent to 43 percent.
Another close one, surprisingly, since modern treaty rights cases wouldn’t have gotten far without Winans and its dicta that Indian survival depends on them. No offense to Sac & Fox, and Prof. Bill Rice (who argued the thing successfully). Maybe a lot of Oklahomans are voting. 🙂
Match-up No. 8
(12) Morton v. Mancari defeats (21) New Mexico v. Mescalero Apache: 65 percent to 35 percent
Not a big surprise here, especially given how tribal advocates depend on Mancari to prop up all sorts of pro-Indian rules, from affirmative action to the Santa Fe Indian Market. Mescalero is a more reliable friend though, and it (along with Merrion) may be the reason tribal interests have primary sovereign authority over their own lands. You never know when Mancari will stop returning your phone calls.
Round 1 results are here.
Looking ahead, there are two more opening round match-up pairings of eight cases each. Some time late next week or early the week after, we’ll move into the octo-finals.