Supreme Court

An excerpt:

No one suggested during a Supreme Court hearing that Congress had done a dumb thing in the way it has treated Indian tribes as partners (the most critical comment was that Congress had acted in a “schizophrenic” way), but sheer irrationality was what seemed to be troubling the Justices. On the one hand, Congress told the government it had to accept every contract offered by an Indian tribe to provide government services. But, on the other hand, it said every year that the government could not pay for everything it got in return. On Wednesday, the Court was trying to figure out what to do about that — other than simply handing the problem back to Congress (an option that did get discussed). The argument came in the case of Salazar v. Ramah Navajo Chapter, et al. (docket 11-551)

Initial Commentary on Ramah Oral Argument

April 18, 2012April 18, 2012Matthew L.M. Fletcher1 Comment

A few quick comments about today’s argument. Know that I’m reading a cold transcript. All the “laughter” indicators suggest today’s argument was a jolly one.

Justices Sotomayor, Ginsburg, and Kagan asked the majority of questions, and their questions suggested some sympathy with the tribal position. Chief Justice Roberts, and Justices Kennedy, Scalia, and Breyer participated as well. Justices Alito and, as is his custom, Thomas asked no questions. If the questions were any indicator, I’d say there may be no more than three votes for the tribal position.

This is a complex, technical question that I find difficult to sort out. On one hand, the tribal interests wish to access Congress’s judgment fund in cases where a self-determination act contract is breached in that Congress has not appropriated enough funds to cover the costs of the contract. If there were a trial, tribal interests hope to prove that the Department of Interior’s practice of allocating these costs to individual tribes is arbitrary and capricious, but they cannot do that since this case comes to the Court on summary judgment.

On the other hand, the government reads the appropriations cap as an absolute bar to accessing the judgment fund, and moreover that this isn’t a contract breach case at all. The government’s briefing suggests a constitutional bar, but that question never seemed to have much salience on the argument.

Justice Scalia’s questioning suggested that a Congressional spending cap is absolute, and controls the outcome. If so, then the contract breach theory probably dissolves, and the access to the judgment fund goes with it. There may be some play in how the government allocates the money under the spending cap, but that will just put tribes against each other and the Department of Interior.

The tribal interests face a plain language problem, and Carter Phillips effort to rely on the Redbook promulgated by the Comptroller that basically says, “Don’t worry, federal contractors, everyone’s going to get paid even with a spending cap,” seemed to fall flat. Indian tribes as contractors are different because the government cannot cancel those contracts (and the history of tribal-federal relations that informs this arrangement is irrelevant to the Court).

I find it interesting and a bit unfortunate that the government and a majority(?) of the Court are willing to apply rules that are detrimental to Indian tribes because of their unique status and that of the statutory framework that applies to them. Justice Sotomayor’s questions suggest she shares that concern. I do not believe that special rules unique to tribal interests that benefit those tribes would withstand scrutiny by the Court, although we haven’t seen anything like that reach the Court lately.

Supreme Court Oral Argument Transcript in Salazar v. Ramah

April 18, 2012April 18, 2012Matthew L.M. Fletcher

Here.

Federal Government Reply Brief in Salazar v. Patchak

April 18, 2012Matthew L.M. Fletcher

Here:

11-247rbUS

Gun Lake Band Reply Brief in Patchak

April 17, 2012Matthew L.M. Fletcher

Here:

11-246 & 11-247 rb

Supreme Court Denies Cert in Beaulieu v. Minnesota

April 16, 2012Matthew L.M. Fletcher

Here is today’s order list.

SCOTUSBlog (Lyle Dennison) Preview of Salazar v. Ramah

April 15, 2012Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

Going into the oral argument, the tribes may well have at least a small advantage in that their argument amounts to three simple propositions: what is at stake is a matter of simple fairness in living up to one’s promises, the government’s ineptness in managing its money deserves no sympathy, and both antique and recent precedent clearly control the outcome. That may stack up well against the government’s rather complex effort to draw a clear distinction between the Cherokee Nation precedent and this new case, its fairly dismissive treatment of the Judgment Fund as a source of funds for the tribes’ claims, and its studied effort to treat the old 1892 precedent in the Ferris case as a matter deserving of little notice and not much argument.

The Court is often seen as quite sympathetic to the plight of Indian tribes, and that can add an emotional factor to any case involving tribal rights. But here, the tribes’ usual, quite zealous protectors — the Interior Department and its Bureau of Indian Affairs — are on the other side, and they are making an argument that their overall obligations to care for the tribes’ interests should not be sacrificed to a legal duty to pay for administrative costs, especially in the face of Congress’s continuing skepticism about those costs.

If the Court is drawn mainly to the constitutional issue that the government has sought to make so prominent, that could work to the government’s considerable advantage. Congress since 1994 has left no doubt that it intended to curb what the Interior Department could spend on a very specific item, and that is difficult to argue around. If the Court is sensitive to separation of powers concerns in this case, and it presumably is always sensitive to that core constitutional concept, it may not want to be seen as second-guessing the lawmakers’ primacy in overseeing the federal Treasury. In this respect, the tribes’ effort to play down the significance of the language used to impose spending caps appeared to be a bit strained.

The tribes’ reliance on the Cherokee Nation precedent has some surface appeal, but, on closer examination, it does not seem to be as clear cut as the tribes would prefer. The lower courts have not been of one mind on its impact, and that no doubt will be noticed by the Justices.

Sam Deloria on Indian Law in the Supreme Court

April 9, 2012April 9, 2012Matthew L.M. Fletcher1 Comment

Here. The first part of this article is coverage of the American Indian Law Center’s “First Thirteen” event. Sam’s commentary is below:

But the judges are not so clearly divided pro and con Indian cases either, as is seen in the recent Jicarilla 8-1 vote, which resulted in protection of privileged communications between trust administrators and the government, so it could be a long wait. And long-time Indian policy analyst Sam Deloria (Standing Rock Sioux), is not content to wait, and argues for a new approach.

Deloria, who currently heads the American Indian Graduate Center and served as director of the American Indian Law Center since the 1970s, shepherding many future attorneys through the Pre-Law Summer Institute, declared, “It’s not going to do us any good to keep constantly complaining that they’re not accepting our arguments. And, I think it would make much better sense to think very deeply about what it is that seems to be troubling them, and I think what troubles them is, what we want.

“It’s not that they don’t understand Indian law, it’s that the version of Indian law that we keep urging on them unsuccessfully, they don’t buy it. And one of the reasons they don’t buy it is they don’t see clearly what the outlines are of tribal powers that we’re talking about and because they’re afraid of what lawyers call ‘the slippery slope’– that if they let these guys do this, then what’s next?

“They’re very skeptical about going along with tribal claims because they just don’t understand what it is we’re talking about – I’d think we’d be much better off trying to depict to the court a workable set of governmental relationships that include tribal, state and federal and how that actually would work in practice—they don’t know the situation of tribal governments on the ground and so, they have misgivings. Well, let’s find out what their misgivings are, and address those, instead of just coming back every time quoting cases from the 1830s, or cases from the 1950’s and early 60’s, let’s go back and see what their problem is and try to address their problem.”

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