SCOTUS Hearing List for Tuesday’s Arguments + A Little Presidents’ Day Commentary

Here is the announcement on the advocates who will argue for the tribe and the individual Indian parties on Tuesday.

Background materials on the Ysleta del Sur Pueblo case here.

Background materials on the Denezpi case here.

I have a few notes.

Reno Gazette-Journal, March 23, 2001, reporting on the Nevada v. Hicks argument.

By my count, after James Anaya argued Nevada v. Hicks, after Tuesday there will have been 37 individual Indian or tribal parties represented at oral argument in the Supreme Court. None of those parties were represented by an American Indian advocate. In only two cases did a woman represent the Indian or tribe — just over 5 percent of cases, a truly pathetic figure. [No Native advocates argued for other parties, either.]

To be sure, the end of Native oral advocacy was intentional. It can be traced to the establishment of a new national strategy adopted by tribal leaders and national orgs in 2001. That strategy that privileged members of the Supreme Court Bar — a small, exclusive group of elite and privileged lawyers — to argue those cases instead of relatively inexperienced advocates.

As a matter of strategy, I suppose it makes sense. The fact that wealthy, powerful parties in the Supreme Court always employ members of the Supreme Court Bar shows where the power is in appellate litigation. Tribal interests are probably smart to rely on them.

The members of the Supreme Court Bar who have argued for Indians or tribes since 2001 are 9-6 in the Court (the overall record is 19-17, so the numbers are not overwhelmingly conclusive).

Of the advocates who argued for individual Indians or tribes, the number of advocates who never argued two or fewer cases before the Supreme Court (in other words, not members of the Supreme Court Bar) is 19, or 55 percent, prevailing in 10 of 21 cases.

The First 13, Navajo Times, April 5, 2012

From 1980 to 2001, thirteen American Indian lawyers argued cases for tribes or Indians in the Supreme Court. They started off strong, winning their first six, then losing six of the next eight cases. The losing streak, culminating in Anaya’s argument, directly led to the establishment of the Tribal Supreme Court Project. [I am aware that the Tribal Supreme Court Project does much more than line up elite advocates for Indians and tribes, by the way.]

What’s the point of all this?

A couple things. (1) There are relatively few Native law students groomed to become elite appellate litigators. Numbers of Natives in law school are already tiny. The best Native law students often don’t have the financial backing take the lower paying jobs of out law school that help them move into appellate litigation, jobs like federal court clerkships, Department of Justice honors programs, and so on. Native students who need to earn big money right away because they have extended families that depend on them often don’t go into those jobs. The Indian law money’s in transactional lawyering with large firms.

(2) The Office of Solicitor General houses the lawyers who argue more Supreme Courts cases than any other group of lawyers. The lawyers that leave the OSG frequently go into private practice and argue more cases. The OSG is the leading pathway to the Supreme Court Bar. The OSG doesn’t hire Native lawyers, or even Indian law specialists.

(3) I really don’t know what’s going on with Native-owned litigation shops (and federal Indian law litigation shops and Indian law practice groups in big firms), either. They don’t seem to be elevating Native lawyers, either. I count 11 cases argued by in-house counsel, sole practitioners, Native-owned firms, and Indian law specialists firms. Zero of the oral advocates were Native.

One page out of several I made back in 2020 for the Cornell NALSA conference. No Native advocates on this page.

(4) The ridiculous behind-the-scenes maneuvering right before the Chehalis argument that led to an unprepared advocate arguing before the Court probably is a logical if irrational consequence of all of this. Similar things have happened before and will happen again.

(5) Tribal leadership is the only solution and in all relevant respects, tribal leaders are massive failures in managing their attorneys. Tribal leaders could insist that their litigation counsel develop Native litigators. Tribal leaders could insist their litigation counsel develop women litigators. Tribal leaders could lobby the Executive branch to pressure the SG’s Office to hire Indian law specialists and Native attorneys. They do not. Full stop.