Tribal Interests Win-Loss Rates in the 21st Century — Trend Downward for Tribal Interests?

Ok, so I used the westlaw search function and dug up all the cases from the federal courts of appeal (published and whatever unpublished opinions show up) that included the words “Indians” or “tribe.” That got me well over 3600 cases for 2000-present, so I used westlaw’s relevance function to make them most relevant for me. The first 850 or cases usually included what I call “tribal interests” — then the drop-off was steep so I stopped looking at 1000. [I should note that the Tohono O’odham case that went to the Supreme Court didn’t show up until 990s, so there’s that.] I counted wins and losses, excluded cases where tribes went against tribes, Indians went against tribes (except in criminal cases — a few ICRA habeas cases, in other words), and most criminal cases involving Indian defendants (except where Indian country/reservation boundaries had play, and Duro fix-style cases). I split them up by 2000-2009, and 2010-present.


Tribal interest wins — 233

Tribal interest losses — 179

Winning percentage — 56.6 percent


Tribal interest wins — 55

Tribal interest losses — 77

Winning percentage — 41.7 percent

So we’re one-third or so through the 2010s, and things aren’t looking so great for tribal interests. Is this significant, statistically or otherwise? Make your own judgments.

A few more comments on methodology. Yeah, I know “wins” and “losses” are subjective, but they’re not really. A tribe is an appellant, the appellate court reverses. That’s a win. Also, what is a “tribal interest”? That’s a little more in the eye of the beholder. And since I am the beholder, I call it as I see it.

With a few thousand RA hours at my disposal, I could do this going back forever, set it out by appellate court, whether there was a dissenter, results in published versus unpublished opinions, what the majority of the panels’ political affiliations were, and how often the Supreme Court granted cert and reversed, etc. Not going to happen this year, but it will happen.

That reminds me. Nineteen times the Supreme Court granted cert off of tribal interest wins below (no idea out of how many cert petitions). Twice the Supreme Court granted cert off of tribal interest losses below (Patchak and Chickasaw, both cases in which the OSG sought or acquiesced in the petition, and both affirmed).

Certiorari off of Tribal Interest Wins in COAs

288 wins

19 grants

6.6 percent of wins end up at the Supreme Court

Certiorari off Tribal Interest Losses in COAs

256 losses

2 grants

0.8 percent of losses end up at the Supreme Court

And so it goes.

2 thoughts on “Tribal Interests Win-Loss Rates in the 21st Century — Trend Downward for Tribal Interests?

  1. Lisa July 26, 2013 / 12:55 pm

    Tribal interests regardless of the nation are always minimally positive. That is to say we take one step forward and two back. The recent events dealing with our national budget and Baby Veranica case show this clearly. We may have won some small victories but even they are twisted and played in the media to appear as if our nations are taking away from the American public rather than simply asking no demanding treaty rights. The public is told our people get casino funds so we do not need the government to continue to honor treaties. It does not matter that no time limit was ever set on them. We are denied rights because we do not meet the white version of what an “Indian” is. Since when does another nation determine who can be a citizen of another. It would be like Russia defining who could be or become American. Religious artifacts and sacred things are sold as art or commodities are dead sit in museums and out burial places are dug up sold or become tourist traps. So how have we won lately? Native nations need to stand together and say no more. We need to stop caring about blood quantum it merely allows a divides us. We must act as nations not tribes if we fail to do so we should simply become “white”. Stand up fight and say enough already we can not afford to lose these coming battles. Protecting our identity, children, land and values must come before petty differences. There is power in numbers so stop pushing aside those that would stand with us. Remember a native person lives the life its not about the blood. Often in the past the strongest supporters we had came from other races and nations. They chose our people’s lifestyles and were a part of our nations. Do not now deny their children or you insult the acceptance our forefathers gave them. We stand together or fall one by one and the tribes will start losing a lot more then one situation.

  2. Dennis G. Chappabitty July 27, 2013 / 12:47 pm

    U.S. Congress passed the Ute Termination Act on August 27, 1954, 59 years ago. Utah Congressional members won’t listen to pleas to repeal this genocidal act. Why? When the Act was passed to strip 490 so-called “Mixed Blood” Uinta Utes of their tribal identity, non-Indians swooped in and used hook and crook to take their “shares” that have now extremely valuable and those non-Indians have become such powerful force, the “Ute Distribution Corporation”, that Congress is scared to repeal this racist law. The “shares” had the words, “void if transferred or sold” within a certain time. BIA knew these interlopers were cheating the unsophisticated exterminated Uintas of the only way they and their families could get ahead in the world after Congress stripped them of their identities and did nothing. In effect, the “whites” took the shares and now comprise a large segment of the Ute Distribution Corporation thereby themselves becoming “Uinta Utes”. They are rich and wealthy while many of the 490 Mixed Blood Uinta Utes who were conned out of their Ute Distribution Corporation shares live in poverty and die off daily wondering why Congress won’t repeal this shameful Act. Lawsuit after lawsuit has been filed yet the powerful prevail and do not want our own genocidal law to get out on the international level. We obtained a list of UDC shareholders 7 years back and even the Church of Jesus Christ of the Latter Day Saints holds these extremely valuable UDC shares. UDC operates in secrecy and no one in public knows who sells and trades these shares. Funny, the Act also intended to terminate the entire Ute Tribe and that has not happened. So, if the entire Ute Tribe has not been terminated then the act has not been completed and is void. Countdown to 30 Days of Our Nation’s Shame – Repeal the Ute Termination and Partition Act – Our own “Door of No Return.”

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