Justice Ginsburg’s Indian Law Record

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.

Sherrill v. Oneida Indian Nation (2005)

Terrible. Some say RBG regretted this decision. Led to the summary evisceration of the New York Haudenosaunee land claims.

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.

United States v. Navajo Nation (2003)

Struck a $600 million judgment favoring the Navajo Nation despite apparent corruption in the Interior Department.

C&L Enters v. Citizen Potawatomi (2001)

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.

Oklahoma Tax Commission v. Chickasaw Nation (1995)

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.

Emory to Host Panel on McGirt

Monday, October 12 | 4 PM | ZOOM
McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America

In celebration of Indigenous Peoples’ Day, Emory University Professor of English Craig Womack (Creek) chairs a panel discussion titled McGirt V. Oklahoma: Understanding the Implications of the Recent Supreme Court Decision Across Native America. 

Sarah Deer (Creek), University of Kansas Department of Women’s, Gender, and Sexuality Studies; Barbara Creel (Jemez Pueblo), University of New Mexico School of Law; and Andrew Adams III (Creek), Muscogee Creek Nation Supreme Court; and Professor Womack will explore the implications of the decision regarding the Creek Nation for Oklahoma tribal nations and other parts of Indian Country.   

ZOOM registration link for this webinar: https://emory.zoom.us/webinar/register/WN_fY3DxgwFTw-SDJDB_owEbA

This lecture is made possible through the generous financial support of the Hightower Lecture Fund and is co-sponsored by the Native American and Indigenous Students Initiative, the Michael C. Carlos Museum, and the School of Law Health Law, Policy & Ethics Project.

Grant Christensen on Indigenous Perspectives on Corporate Governance

Grant Christensen has posted “Indigenous Perspectives on Corporate Governance” on SSRN. Here is the abstract:

The foundation of the modern corporation is built upon the separation of labor and capital. These entities were anathema to most Indigenous peoples when the Virginia Company was chartered in 1606 for the purpose of settling American lands. Over centuries of colonization federal law worked to assimilate Native Americans. Tribes were encouraged, even forced, to create their own corporate entities. Indelibly, consistent with their inherent sovereignty, Indigenous groups fused autochthonous legal principles into these corporate structures. Today, in the shadow of the #BLM movement and societal demands that corporations become more responsive to their communities and to the environment, shareholder primacy has reached its nadir. As corporate governance seeks to replace it with something stakeholder centered autochthonous principles gleaned from Indigenous corporations offer a way forward. These proposed reforms are as varied as the chthonic law they are built upon and range from making nature itself a corporate shareholder to issuing shares that gain voting rights only after they have been held to maturity.

Mark Trahant (ICT) on Native Lawyers Who Should Be Considered for SCOTUS

Here is “The most important thing a president can do.”

An excerpt:

Yet there have always been Native American lawyers who could have served; the talent has always been there. It’s possible the next round of appointments could make history because so many Native American lawyers have the same or better legal experience than other appointments to the courts.

“Even over the past few years we have always had really great well qualified attorneys,” said Joel West Williams, Cherokee Nation, a senior attorney with Native American Rights Fund in Washington. “The biggest thing that has changed is they have worked their way into positions such as state supreme court justice — and that is a prime position from which to be selected.”

There are three Native Americans actively serving in the federal courts. President Barack Obama appointed U.S. District Judge Diane Humetewa, Hopi, in Arizona, and U.S. District Judge Derrick Watson, Native Hawaiian, in Hawaii. President Trump appointed U.S. District Judge Ada Elene Brown, Choctaw, in the Northern District of Texas.

There are three Native Americans now serving on state supreme courts, Justice Rachel Montoya-Lewis, Isleta Pueblo, in Washington, Ann McKeig, White Earth, and in Oklahoma, Dustin Rowe, Chickasaw.

Ann Tweedy on the Impact of the McGirt Decision

Ann Tweedy has posted “Has Federal Indian Law Finally Arrived at ‘The Far End of the Trail of Tears’?”, forthcoming in the Georgia State University Law Review, on SSRN.

Here is the abstract:

This essay examines the United States Supreme Court’s July 9, 2020 decision in McGirt v. Oklahoma, which held that the historic boundaries of the Creek reservation remain intact, and argues that the decision likely signals a sea change in the course of federal Indian law of the magnitude of Obergefell v. Hodges in the LGBT rights arena. The essay shows how the opinion lays a very strong foundation for a much-needed return to traditional federal Indian law principles, respectful treatment of tribal governments as a third sovereign in the American system, and an understanding of fairness from the perspective of tribes and Native individuals. The essay concludes with the hope that Justice Gorsuch’s majority opinion will foster predictability in the wildly unstable area of disestablishment and diminishment jurisprudence, as well as in other facets of federal Indian law.

Indian Law Professors Amicus Brief in Fulton v. City of Philadelphia


Amicus Brief of Indian Law Professors

An excerpt:

Amici write to explain how the long and shameful history of treatment of Indian children by the child welfare system in the United States demonstrates the dangers of and substantial harms inflicted by discrimination in this setting, including in particular discrimination based on the religious beliefs of government employees or agents

Miigwetch to April Youpee-Roll for taking the lead!

Elizabeth Reese on McGirt: “Welcome to the Maze: Race, Justice, and Jurisdiction in McGirt v. Oklahoma”

In the University of Chicago Law Review Online, here. An excerpt from this outstanding essay:

The morning of July 9th, American Indian tribal citizens and non-Indian residents of eastern Oklahoma woke up and experienced a similar shock. The United States Supreme Court, in an opinion authored by Justice Neil Gorsuch, announced that the Muscogee (Creek) Nation’s reservation boundaries had never been disestablished.

The Supreme Court’s 5–4 decision in McGirt v. Oklahoma implies, though does not explicitly hold, that eastern Oklahoma is, was, and always had been within the undiminished boundaries of the Muscogee (Creek), Cherokee, Chickasaw, Choctaw, and Seminole Nation’s reservations. The ruling was shocking and confusing for both groups of American citizens because they were experiencing a bit of what “justice” is like for the other group for the very first time.

That Thursday morning gave American Indian people a glimpse of what it must be like not to be “the Indians.” On that day, American Indians weren’t reduced to a metaphorical Red Sea, always parting to make way for White Americans’ interests. Instead, they were able to win despite those interests and without the indignities that have become the norm in the Supreme Court’s Indian law opinions.

That same morning gave the non-Indians of eastern Oklahoma a glimpse of part of the Indian experience: waking up to helpless confusion about what the United States government has just done to your lands and rights, followed by the even greater problem of trying to understand the confusing jurisdictional rules that have been the status quo in Indian Country for a long time.

At times like this I think that Lady Justice must have a sense of humor.