Justice Scalia’s death allows us to reflect on his Indian law record. If you were an Indian person or an Indian tribe as a party in a Supreme Court matter, it was very unlikely you would have his vote, although he did on occasion surprise.
Overall, during Justice Scalia’s tenure on the Supreme Court (his first case was Iowa Mutual), tribal interests prevailed in 21.4 percent — 12 wins, 44 losses, and 8 split decisions or no decisions. Justice Scalia voted in favor of tribal interests 16.2 percent of the time — I count 8 1/2 votes in favor, and 52 1/2 votes against.
Justice Scalia authored five majority opinions — all of them defeats for tribal interests — and he wrote three dissenting opinions — two of them favoring tribal interests.
Justice Scalia’s most important purely Indian law opinion was the opinion for the Court in Nevada v. Hicks. There, the Court held that tribal courts cannot entertain federal civil rights suits against state officials. Scalia’s opinion also purported to extend the Montana analysis onto tribal trust lands, and recognized the authority of state officers to investigate violations of state law on tribal trust lands, neither of which, in my view was necessary to deciding the question.
Justice Scalia’s most important opinion with an Indian law element was the opinion for the Court in Employment Division v. Smith. There, the Court held that a nondiscriminatory state law that burdened religious exercise was constitutional under the First Amendment, abrogating precedents that applied a strict scrutiny analysis to such burdens in favor of a rational basis standard. Congress would attempt to undo that decision in the Religious Freedom Restoration Act.
The next most critical opinion authored by Justice Scalia was Blatchford v. Native Village of Venetie. There, the Court held that the Eleventh Amendment barred Indian tribes from suing states. The case was antecedent to the Court’s earth-shattering Eleventh Amendment decision in Seminole Tribe in 1996.
Justice Scalia wrote the majority opinion in County of Yakima v. Yakima Indian Nation, a case holding that the General Allotment Act effectively authorized states to tax allotted fee lands. Finally, Justice Scalia wrote the majority opinion in United States v. Navajo Nation II, where the Court again rejected a trust breach claim by the tribe arising from the Peaboady Coal-Interior Secretary Hodel ex parte communication.
Justice Scalia also wrote three short dissenting opinions, at least one of which was a vote in favor of tribal interests that may have surprised observers.. In South Florida Water Management Dist. v. Miccosukee Tribe of Indians, a Clean Water Act case with minimal Indian law questions, he filed a brief dissent objecting to the majority’s analysis, and would have affirmed the lower court. In Adoptive Couple v. Baby Girl, he dissented separately to state he would have recognized the birth father’s rights. In Michigan v. Bay Mills, he joined the primary dissent and wrote separately to acknowledge that he had changed his position supporting tribal sovereign immunity in Kiowa Tribe.
We’ve heard many times over the years that Justice Scalia spoke about Miss. Band of Choctaw Indians v. Holyfield as a vote he most regretted (he voted for the tribe) but felt forced to because of the clarity of the statute. If anyone has video of his comments, please send it along.
For those of you wondering, Justice Scalia voted for tribal interests in Holyfield, Potawatomi (presumably on the immunity issue alone), Sac and Fox (Bill Rice’s case), Kiowa, Arizona v. California (2000), S. Fla. Water Management Dist., Cherokee Nation v. Leavitt, Salazar v. Ramah, and Adoptive Couple.