Supreme Court

Bethany Berger’s History of Williams v. Lee

Matthew L.M. Fletcher

Bethany Berger has posted “Williams v. Lee and the Debate over Indian Equality,” forthcoming in the Michigan Law Review, on SSRN. Here is the abstract:

Williams v. Lee (1959) created a bridge between century-old affirmations of the immunity of Indian territories from state jurisdiction and the tribal self-determination policy of the twentieth century. It has been called the first case in the modern era of federal Indian law. Although no one has written a history of the case, it is generally assumed to be the product of a timeless and unquestioning struggle of Indian peoples for sovereignty. This Article, based on based on interviews with the still-living participants and examination of the congressional records, Navajo council minutes, and Supreme Court transcripts, records, and justice’s notes, reveals an unexpected complexity in both Indian and non-Indian contributions to the case and the era in federal Indian policy from which it emerged.

This history shows that both Williams and the policy developments that surrounded it emerged from consensus about the need for Indian equality and equal opportunity in the 20th century, but Indian and non-Indian debate about whether equality meant full assimilation and termination of the special legal status of tribes, or continued respect for the ability of Indian peoples to govern themselves. It makes this debate concrete through the story of the Williams family, for whom the state collection action and the resulting seizure of the family sheep herd struck at the heart of Navajo lifestyle and culture. It further connects the case to the momentous debates over African American integration generated with Brown v. Board of Education (1954) and Cooper v. Aaron (1958). Ultimately, I argue, Williams v. Lee and the self-determination movement that followed it represent a choice by American Indians to insist that respect for tribal status was necessary to ensure Indian equality in the modern era. This history and its results provide an important lesson today as federal Indian policies are increasingly attacked as fundamentally inconsistent with fairness and equality.

Carole Goldberg on Justice Ginsburg’s Indian Law Decisions

Matthew L.M. Fletcher1 Comment

Carole Goldberg published “Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases,” in the Ohio State Law Journal.

This, along with Al Ziontz’s recollection of the ACLU‘s split over how to approach Santa Clara Pueblo v. Martinez during then-Professor Ginsburg’s tenure as head of the ACLU’s Women’s Rights Project, is critical reading.

Minnesota Files Opposition to PL280-Related Cert Petition

Matthew L.M. Fletcher

Here: Minnesota Cert Opposition.

The petition and other materials are here.

Legal News in Sunday’s NYTs

Matthew L.M. Fletcher

An article on Justice Stevens here.

And an article on attacks on law school clinics here.

Wolfchild Petition Stage Briefing Complete

Matthew L.M. Fletcher1 Comment

Here is the petitioner’s reply: Wolfchild Reply in Support of Petition

Earlier briefs are here.

North County Community Alliance, Inc. v. Salazar Petition Stage Filing Complete

Matthew L.M. Fletcher

Here is the petition (previously posted).

Here is the cert opposition from the Solicitor General.

And here is the reply: North County Community Alliance Reply to Cert Opposition

This petition is slated for the April 16, 2010 Conference.

National Law Journal: “Indians Try to Keep Cases Away from High Court”

Matthew L.M. Fletcher1 Comment

From the NLJ (downloadable version):

Indians try to keep cases away from high court
Marcia Coyle
March 29, 2010

The Supreme Court has not granted review of any Indian law cases in the current term, but you won’t hear complaints from the Tribal Supreme Court Project.

Most lawyers work hard to keep their lower court victories out of the Supreme Court, but sometimes, fearing hostile justices, they look to avoid the high court even when they have lost.

That’s the position in which the tribal project, a joint venture of National Congress of American Indians and the Native American Rights Fund, finds itself today as it painfully considers its zero-for-five record before the Roberts Court.

“We view this Court as not favorable on our issues,” explained Richard Guest, senior staff attorney at the Native American Rights Fund.

Last term, recalled Guest, the justices granted review in three Indian law cases. “We had prevailed in the lower courts in all three and then lost all three in the Supreme Court,” he said. “We did a little bit better than some folks — environmentalists lost five cases which they had won in the lower courts — but we are all batting zero.”

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and was formed in 2001 in response to a series of negative decisions affecting tribal sovereignty in the mid-1990s, according to Guest.

“We had a winning percentage from 2001 to 2005 but now we’re back to a situation where we are zero for five,” he said.

There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States.

“If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases,” said Guest.

His concern gets some support from a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: “Factbound and Splitless: Certiorari and Indian Law.” From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases decided by the Supreme Court. But since Cabazon, tribal interests have lost more than 75 percent of their cases.

Fletcher, who studied more than 160 cert petitions filed between 1986 and 1994, concluded that the Court’s certiorari process itself is a barrier to justice for tribes and individual Indians. Cert pool memos by the Court’s law clerks showed, he reported, that clerks overstate the merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.

“Tribal petitions, often involving the interpretation of Indian treaties or complicated and narrow common law questions of federal Indian law, are readily deemed ‘factbound’ and ‘splitless,'” explained Fletcher. “Conversely, the cert pool values and perhaps better understands the interests of state and state agency petitions, as well as the way the pool’s audience (the Court) understands and values the interests of states. Thus, the pool’s recommendations favor states and state agencies far more. The result, frankly, is that tribal petitions on a question will almost never be favored, whereas state petitions on the same question will often be favored.”

Fletcher concluded, “While the admonition that tribal interests should do their very best to avoid the Supreme Court is not new, the findings of this study also demonstrate with increased force and clarity that Supreme Court adjudication is an extraordinarily hazardous process for tribal interests.”

Continue reading →

“Factbound and Splitless” Available Online

Matthew L.M. Fletcher3 Comments

Here and here (Factbound and Splitless):

Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes

Matthew L.M. Fletcher

The Supreme Court’s certiorari process does more than help the Court parse through thousands of “uncertworthy” claims—the Court’s process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. But this empirical study of 163 preliminary memoranda, recently made available when Justice Blackmun’s papers were opened, demonstrates that the Court’s certiorari process is neither objective nor neutral. The research, reflecting certiorari petitions filed during October Term 1986 through 1993, demonstrates that statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari to far more petitions filed by opponents of tribal sovereignty.

Jeffredo v. Macarro Cert Petition re: Pechanga Disenrollments

Matthew L.M. Fletcher2 Comments

Here: Jeffredo Cert Petition

Incidentally, a few days after the petitioners filed, the Ninth Circuit panel adopted an amended opinion (here).

Lower court materials are here.

Questions presented:

1. Is the Writ of Habeas Corpus under the Indian Civil Rights Act limited solely to tribal criminal proceedings instead of also including tribal civil proceedings which result in the disenrollment of life-long tribal citizens?

2. Does the combination of “disenrollment,” which is the stripping away of Appellants’ life-long tribal citizenship and the current and potential restrictions placed on Appellants, constitute a severe restraint on their liberty so as to satisfy the “detention” requirement of Section 1303 of the Indian Civil Rights Act?

3. Does the disenrollment of life-long tribal members, by itself, constitute a severe restraint of liberty so as to satisfy the “detention” requirement of the Indian Civil Rights Act?

4. Did the Appellants exhaust their tribal remedies by going through every Pechanga Tribal appeal proceeding available to contest their disenrollment?

I don’t see how this is certworthy. There’s no split in authority alleged by the petitioners (they didn’t even try to assert a split with the Second Circuit which decided a somewhat similar case (Poodry) years ago). I imagine the Supreme Court one day will reconsider the National Farmers Union tribal court exhaustion doctrine but this doesn’t seem to be a very good vehicle for that because it’s not a tribal court jurisdiction case at the heart of the doctrine. Plus, it’s an internal tribal matter with no national importance whatsoever (other than the side-show of Indian gaming wealth).

Finally, despite the dissent from District Court Judge Wilkens, I don’t think the Roberts Court is inclined to expand habeas rights in any way, let alone to benefit Indian people in this way. As Justice Holmes told Justice Brandeis, the Supreme Court is not there to do justice.

American Indian Higher Education Consortium Brief in Christian Legal Society v. Martinez

Matthew L.M. Fletcher

Well, it’s a brief they signed on to….

Here.