Justice Ruth Bader Ginsburg’s passing offers an opportunity for reflection on her Indian law legacy. As many of you know, we keep a list of modern era Supreme Court cases here. RBG was on the court nearly 30 years, and her record is extensive. It is also, from the point of view of tribal interests, checkered. But if her replacement had a similar record, it wouldn’t be a disaster for Indian country.
Overall, RBG voted in 51 cases in which the Court issued an opinion. She voted with tribal interests 23 1/2 times, against tribal interests 26 1/2 times, and 1 time voted with individual Indians against federal and tribal interests. She wrote 10 majority opinions (nearly 20 percent of those cases!), 3 1/2 favoring tribes (and 1 favoring individual Indians), and 6 1/2 against. Out of these 51 cases, tribes won 19 1/2 cases and lost 32 1/2 (33 1/2, if you count the 1 case involving individual Indians). She voted with tribal interests more often than the Court, but not by much. There are also two cases that were 4-4 ties (tribes won both), but we don’t know where she voted. [there are going to be errors in this post, I did it quickly, so chillax]
Incidentally, tribes have prevailed in 11 out of 13 cases since 2014 (!!!!).
Here are her majority opinions in reverse chronological order:
U.S. v. Bryant (2016)
Decision favoring federal court enhanced sentence under 18 U.S.C. § 117 of habitual D.V. offender with several (dozens?) of uncounseled tribal court convictions.
Inyo County v. Bishop Paiute (2003)
Held tribes are not “persons” under 42 U.S.C. § 1983, and cannot sue states for violations of federal laws.
Struck a $600 million judgment favoring the Navajo Nation despite apparent corruption in the Interior Department.
Found an implied waiver of tribal immunity in a boilerplate construction contract. RBG routinely voted against assertions of tribal, state, and federal immunuiy.
Arizona v. California (2000)
Allowed Quechan Tribes water rights claims to proceed.
Montana v. Crow Tribe (1998)
Excused state from having to repay taxes illegally collected from tribe.
Strate v. A-1 (1997)
Held against tribal jurisdiction over a car wreck on a state highway running on trust lands within a reservation.
Babbitt v. Youpee (1997)
Struck down the Indian Land Consolidation Act’s escheatment provision in favor of individual Indian interests.
Adopted incidence of tax analysis to strike state tax of motor fuels but to allow collection of state income tax of off-reservation income of tribal members.
RBG also wrote important concurrences and dissents. Here is a sampling:
Patchak v. Zinke (2018)
Wrote concurrence affirming constitutionality of Gun Lake Trust Lands Act in 5-4 case.
Lewis v. Clarke (2017)
Wrote concurrence against tribal interests in tribal employee immunity case.
Nevada v. Hicks (2001)
Wrote concurrence, apparently trying to stop the extension of her opinion in Strate.
Here is where I called Donald Trump an asshole for predicting RBG’s death. He remains an asshole.
There is a lot more to say, but this is it for now.