The Court granted the government’s motion to argue the case as amicus curiae, diving the respondent’s argument time. Here is the docket sheet.
Supreme Court
Charles Wilkinson’s Remarks before the Federal Circuit
From the Federal Circuit Bar Journal (17 Fed. Circuit B.J. 235 (2008)):
Here’s an excerpt from “Indian Nations and the Federal Government: What Will Justice Require in the Future?”, a part of the 20th Annual Federal Circuit Judicial Conference:
The Court of Federal Claims has asked me to take a few minutes to step back, look out toward the horizon, and even dream a bit, about what the field of Indian law might be and I’m honored to oblige as best I can.
I believe that Indian tribes would receive the high justice they deserve from our courts if judges were to understand two legal doctrines in their full context and to understand them in two different ages. What I will propose is easy to state but difficult to apply. Yet it is realistic and can be done largely or completely by those judges able to invest the time.
I wish that judges could know tribal sovereignty and the trust relationship. I wish further that they could know them under the circumstances at treaty time and under the circumstances today. And I wish that they couldfeel them as well as know them. Lawyers and judges apply most legal rules mechanically. But some patches of law, because of their sensitive content, histories, and human faces, hold elevated places in the law. These are the terrains of the law that wefeel -free speech, due process in a murder trial, freedom from racial discrimination and others-the ones that touch a judge’s soul, the ones that make a judge put in the time, reflect, worry, and insist on pure justice, however that may cut in a particular case. Tribal sovereignty and the trust rightfully belong in that company, the law’s highest company.
***
Much of the law of tribal sovereignty comes back to tribal courts. This applies even to cases that do not directly involve tribal court jurisdiction. Should a federal court uphold a tribal tax, zoning ordinance, or fishing or hunting regulation? Non-Indians may be affected. The tribal courts inevitably must be considered because, if the tribe has the substantive lawmaking authority, then disputes will go to tribal court. Can the federal court trust the tribal court?
To a person, state and federal judges know both state and federal courts and how they work. It’s second-nature. But very few know much about tribal courts. Given that, it’s human nature for federal and state judges to be concerned about upholding the jurisdiction of courts that may be incompetent or unfair. This is important: Tribes own 58 million acres in the 48 continuous states-an area larger than Minnesota-and the tribal land base is steadily growing.
Long Family and Amici Briefs Supporting Respondent Filed
All the bottom side briefs in the Plains Commerce Bank v. Long Family Land & Cattle Co. have been filed and are available at the NARF/NCAI Supreme Court Project website here.
The Bank’s reply brief is due shortly.
Slate: A New Way of Judging the Ideology of Supreme Court Justices
From Slate:
I was struck by a news photo, back when John Roberts was being vetted for the Supreme Court, of our future chief justice walking to the street through the front yard of his Bethesda, Md., home. It was a very bare yard, painfully tidy; you could call it socially conservative. From the looks of things, many homeowners from Bangor, Maine, to San Diego, Calif., have a similar fear of looking different from their neighbors or being a little freed-up, generous, or, dare I say, liberal in their planting. (At one point, I considered photographing the front yards of each of our Supreme Court justices to see if the garden plots reflected their different temperaments and likely decisions. I’ve been holding off on this for fear of being apprehended as a security risk.)
US Amicus Brief in Plains Commerce Bank
It’s a good one!
Brief of United States as Amicus Curiae Supporting Respondent
“Our Savage Neighbors” Wins National Award
Apropos of Justice Kennedy’s shout-out to “hostile Indians” in yesterday’s oral argument in the D.C. gun case, the Legal History Blog reports that Peter Silver’s book “Our Savage Neighbors: How Indian War Transformed Early America” won one of the Bancroft Awards for books published in 2007.
I’m a big fan of Silver’s book. It’s easy to forget that the Founding Fathers were pretty nervous about those Indians on the other side of the Appalachians, both north and south. It was in 1763 when Pontiac (Odawa!) organized a major military offensive in the Great Lakes region, with attacks on numerous British forts from Michilimacinac to Detroit — all on the same day!
Does that mean the Second Amendment was about self-defense? No.
Justice Kennedy: “Hostile Indians” may have been a motivating factor for 2nd amendment.
In yesterday’s oral arguments at the Supreme Court for District of Columbia v. Heller – the case regarding the constitutionality of the Washington, D.C. handgun ban – the justices were concerned with the issue of whether the right to “bear arms” under the 2nd amendment is a “personal” right, or a right secured for the states to allow them to organize a militia.
Justice Kennedy indicated his belief that the right is personal, and suggested that “hostile Indian tribes” may have been a motivating factor. From the transcript of oral arguments:
JUSTICE KENNEDY: Well, do you think the clause, the second clause, the operative clause [of the second amendment], is related to something other than the militia?
MR. DELLINGER [Attorney for Washington, D.C.]: No. I think —
JUSTICE KENNEDY: All right. Well then —
MR. DELLINGER: — the second clause, the phrase “keep and bear arms,” when “bear arms” is referred to — is referred to in a military context, that is so that even if you left aside —
JUSTICE KENNEDY: It had nothing to do with the concern of the remote settler to defend himself and his family against hostile Indian tribes and outlaws, wolves and bears and grizzlies and things like that?
MR. DELLINGER: That is not the discourse that is part of the Second Amendment. And when you read the debates, the congressional debates, the only use of the phrase “keep and bear arms” is a military phrase, and —
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I’m not one who likes to attempt to divine a sinister meaning from every off-hand remark, but I did find Justice Kennedy’s use of the term “hostile Indian tribes” along side “outlaws, wolves and bears and grizzlies and things like that” interesting. I don’t believe that he intended to insult Indian tribes with his remark, but I do believe that it is reflective of the court’s longstanding and continuing view that Indian tribes are a danger to society (see the Oliphant & Montana cases)- just like “outlaws, wolves and bears and grizzlies and things like that.” I’ll leave it to Matthew, Wenona, and Kate to expound upon any deeper meanings in this statement. I just found it both interesting and amusing.
The complete transcript of the oral argument in the D.C. handgun case can be found on the SCOTUS Blog.
Merits Brief for Long Family in Plains Commerce Bank Case
It’s here.
Empirical Research on Tribal Courts and Customary Law Posted on SSRN
My working paper, “Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data,” has been posted on SSRN. Chi-miigwetch to Alicia Ivory for all her hard work in helping with the research (you can see her contributions in the lengthy appendices at the end of the paper).
Here’s the abstract:
This study is an attempt to assess the validity of my theory that tribal courts do not apply “unusually difficult” laws in cases involving nonmembers. I theorized that in most cases (if not the vast, overwhelming majority), tribal courts apply a kind of “intertribal common law,” which consists of the application of tribal statutes that mirror federal and state statutes and the federal and state cases that interpret them.
Of the 120 cases involving an ICRA issue, tribal court judges applied federal and state case law as persuasive (and often controlling law) in 114 cases (95 percent). And, of the six cases in which the tribal court explicitly refused to apply federal or state case law, either the parties involved tribal members in a domestic dispute or else the tribal court held that its interpretation of the substantive provisions of ICRA were stronger or more protective of individual rights than would otherwise be available in parallel federal or state cases.
Miller and Ruru: A Comparative View of the Doctrine of Discovery
Bob Miller and Jacinta Ruru have posted “An Indigenous Lens into Comparative Law: The Doctrine of Discovery in the United States and New Zealand” on SSRN.
From the abstract:
Turtle Talk 
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