I have posted a fairly rough draft of a new paper titled, “The Utility of Amicus Briefs in the Supreme Court’s Indian Cases,” on SSRN. Comments welcome.
Here is the abstract:
Four times in the past 15 years, arguments or information raised by amici before the Supreme Court have had dramatic impacts on the Court’s decision making process in cases involving federal Indian law. In two cases involving government contracting, amicus briefs filed by the United States Chamber of Commerce supporting tribal interests played important roles in pointing out the impact the Court’s decision would have on defense and other government contractors. In another case, an amicus railroad company alleged that the procedures in one tribal court were stacked against nonmembers, apparently causing the Court to reconsider its views on tribal civil jurisdiction. In a fourth case, an amicus resuscitated a line of argument long thought to be retired from the field (in fact, none of the parties briefed the argument) and persuaded the Court to decide a case on that basis. What about these briefs, as opposed to the hundreds of other Supreme Court amicus briefs filed in the Court’s Indian cases, served to influence the Court so heavily? This short paper hopes to sort out a few general guidelines for amicus brief writers in federal Indian law cases by reviewing a series of amicus briefs and how we know the Court deals with them.
Turtle Talk 