This case was denied cert at the Supreme Court this morning. The order list is here.
Supreme Court
Why Does the Supreme Court Grant Cert Petitions Almost Exclusively Against Tribal Interests?
It’s a long enough answer, full of subjectivity, but worth discussion in the context of the United States v. Tohono O’odham Nation case, to be argued Nov. 1.
Why is this case so important? There’s no split in authority to be seen, and there hasn’t even been a judgment against the United States yet. So under Supreme Court Rule 10, we’re left with “importance” or the “gross error” of the lower court.
The real question is whether the United States must defend two sets of claims filed in different courts. Money claims against the U.S. are normally filed in the Court of Federal Courts, and other claims can be filed in district court. TON filed a claim for equitable relief in DCT, and then a money damages claim in the CFC. The question is whether both claims are allowable under 28 USC 1500 (in other words, are they different claims).
So what’s so important about this case? Why now? Why not wait to see if the government loses a money judgment?
Perhaps the “importance” of money claims is the possible magnitude of them. Remember, the damages award in the Navajo Nation Peabody Coal claim was $600 million (and upwards of $1 billion after interest); the original Black Hills award was $17.5 million (now much more than that); and the Cobell award could have been billions (and the settlement was around $3 billion). Who else has repeated money claims of that magnitude against the federal government?
Indian tribes, that’s who.
News Coverage of Madison County v. OIN
From How Appealing:
“U.S. Supreme Court to hear Oneida Indian Nation foreclosure case”: The Utica Observer-Dispatch contains this article today.
Madison County v. Oneida Indian Nation
Wow, we’ve been doing a lot of Supreme Court posts lately. Unfortunately, here’s another one. The Supreme Court granted cert in Madison County v. Oneida Indian Nation this morning. A link to the materials is here [OIN v Madison County CA2 Opinion].
Update — Justice Sotomayor seems to have recused herself from this matter (see the SCT order here).
At What Point Does Indian Country Boycott the Supreme Court?
Seriously. Georgia did it in the Cherokee cases — they raised their sovereign immunity defense and literally filed no briefs and made no appearance at oral argument. [Of course, that wouldn’t happen now if a party refused to appear — the Court would appoint counsel to argue the case.]
It would be a radical move, and must be strategic. My guess is the best (and perhaps only) time to try it is when the Supreme Court accepts jurisdiction over a case entirely under its common law jurisdiction. An example would be the Court’s review of tribal court jurisdiction over nonmembers, reviewable not through authorization from Congress but solely under the Court’s decision in National Farmers Union, which created both a federal right and a federal remedy. Federal courts could still properly review tribal court jurisdiction when a party is seeking to enforce a tribal court order in federal court.
Or maybe the boycott should occur where the Court is reviewing treaty language, as Rob Porter and others have suggested.
The main problem here is that tribal interests want to win these cases, and, well, they won’t if they don’t show up. So we’ll keep following the Supreme Court, which will issue some orders later today that may affect Indian Country.
The Atlantic: On Snyder v. Phelps and First-Timers Arguing in the SCT
From the Atlantic:
Lawyers with no Supreme Court experience sometimes insist on going to the Show. The result can be a halting hour of argument that sometimes resembles the 1945 World Series, between two teams so war-depleted that sportswriter Warren Brown said, “I don’t think either one of them can win it.” [opening]
* * *
Alas, there’s really no need for a theological conspiracy theory. Trial lawyers often really do love their own clients and hate the people on the other side, and often can’t shut up about it. Which it is why both sides would have done better to find dispassionate appellate lawyers, who might have saved us from the possibility that a disgusted Court may make a bad decision. [ending]
TT Note: BTW, the Detroit Tigers won the 1945 World Series. Go Tigs!
On the “Supreme Court Bar” and Indian Law
The NYTs’ Adam Liptak published a fairly scathing article on the so-called “Supreme Court Bar” — the specialists that argue more than 50 percent of all Supreme Court cases now decided. It’s worth reviewing this article, especially in light of the rise of the Tribal Supreme Court Project, which has a goal of recruiting specialists to argue Indian law cases (as well as brief the merits briefs and at least some of the amicus briefs).
Given the NYTs article, which suggests that some (many?) of the Supreme Court Bar members are more interested in self-gratification than winning a case (and notes that Chief Justice Roberts once made some very disparaging remarks about them ten years ago), have tribal interests been prejudiced by the Tribal Supreme Court Project’s efforts to utilize these lawyers? Has there been any effect at all?
A few decades ago, law prof Mark Galanter argued that “repeat players” [corrected link] (“the haves”) have distinct and significant advantages over one-timers. While he didn’t emphasize the Supreme Court’s cases (or individual attorneys), his theory seems to have significant resonance in this area. It would make sense that entities that have frequently appeared in the Supreme Court would have advantages over a party that will be there once and never again. At our conference last weekend, Douglas Laycock indicated that many organizations that appear frequently as amici in the Court’s religious freedom cases are very good at organizing amici strategies, indicating that these repeat amici have advantages, too.
It would make sense that lawyers that appear frequently before the Supreme Court would have some advantage as well, especially since those lawyers likely to be retained to argue multiple cases are usually former Supreme Court clerks, current or former lawyers with the Office of Solicitor General, or otherwise exceptional appellate litigators. These factors were enough to persuade the big thinkers in the Tribal Supreme Court Project (circa 2001) to pursue a strategy of recruiting and retaining the Supreme Court Bar in future.
Our sense is that the jury’s still out. We don’t know yet whether the Supreme Court Bar makes a difference, in part because it took nearly five years to persuade the tribal clients to retain the Supreme Court Bar.
NYTs on the Increasing Importance (and Criticism) of the “Supreme Court Bar”
From the NYTs:
umberto Fernandez-Vargas, deported to Mexico, had run out of options. A federal appeals court said he could not return to the United States to live with his American wife and son. And his lawyer did not have the expertise or money to pursue the case further.
Then the cavalry arrived. Leading lawyers from around the country, sensing that the case was one of the rare ones that might reach the Supreme Court, called to offer free help. Mr. Fernandez-Vargas’s immigration lawyer was delighted, and he chose a lawyer from a prominent firm here.
But there was a catch, and then a controversy. The catch was that the Washington lawyer, David M. Gossett, would take the case only if he could argue before the Supreme Court himself.
The controversy was that groups representing immigrants were furious, suspicious of the new lawyer’s interest in the case and fearful of a Supreme Court ruling that would curtail the rights of immigrants nationwide.
Indeed, Mr. Gossett faced a barrage of hostile questions from the justices, and in June 2006 the court ruled against his client, 8 to 1. The ruling wiped out decisions in much of the nation — notably from the federal appeals court in California — that had favored immigrants.
Mr. Gossett is among an increasingly influential cadre of lawyers specializing in Supreme Court cases, attracted to the importance and intellectual challenge of the work. Many are willing to serve without charge to draw prestige and paying clients to their firms.
Thirty years ago, 6 percent of cases accepted by the court were brought by lawyers specializing in Supreme Court advocacy, according to data compiled by Richard J. Lazarus, a law professor at the Georgetown University Law Center and faculty director of its Supreme Court Institute.
Why Justice Kennedy Could Be the Most Important Justice in the 2010 Term in Indian Law Cases
Today, Michigan State University’s Indigenous Law and Policy Center hosts its Seventh Annual Indigenous Law Conference, “Persuasion and Ideology: Politically Divisive Cases in Appellate Courts.”
My talk today is titled, “The Elusive Fifth Vote.” The idea for this talk derives from exchanges I had with Phil Frickey after the Supreme Court decided Plains Commerce Bank 5-4 in 2008. We had talked about co-authoring a paper with the hope of identifying a fifth vote in favor of tribal interests in a future case. Unfortunately, Phil walked on before we could write this paper.
The longer paper will focus on the five Justices that voted against tribal interests in Plains Commerce Bank. While the composition of the Court has changed since this case, the five Members in the majority remain on the Court. They are Chief Justice Roberts, and Justices Scalia, Kennedy, Thomas, and Alito. Interestingly, the toughest questioning in the PCB case came from Justice Scalia to the Bank’s attorney Paul Banker, who had no answer as to why the Bank (which had drafted the loan documents at issue) never made clear what the proper venue (state or tribal) would be in a foreclosure action. Regardless, Scalia joined Chief Justice Roberts majority opinion.
These five Justices form a block that is a tough nut to crack in many cases. Four of them are truly reliable votes in virtually all constitutional law cases, with Justice Kennedy the only one of the five likely to stray on occasion. This, of course, puts Justice Kennedy in the apparent role of swing vote, even if he is really a very conservative Justice.
But Justice Kennedy isn’t necessarily a swing vote in Indian law cases. As part of the preliminary research into the paper, Phil and I concluded Kennedy voted against tribal interests even more than Scalia. Moreover, we don’t have much of a track record to go on in regards to Chief Justice Roberts and Justice Alito.
Nonetheless, at least for this Term, my suspicion is that Justice Kennedy will be the most important Justice in the Indian law cases (I’m assuming there will be more than one) in this Term.
SCOTUSBlog Lists U.S. v. Jicarilla Apache as a Petition of the Day
From SCOTUSBlog:
Today’s second petition of the day is:
Title: United States v. Jicarilla Apache Nation
Docket: 10-382
Issue(s): Whether the attorney-client privilege entitles the United States to withhold from an Indian tribe confidential communications between the government and government attorneys implicating the administration of statutes pertaining to property held in trust for the tribe.
Turtle Talk 
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