Turtle Talk

President Obama is expected to announce D.C. Circuit Judge Merrick B. Garland to the Supreme Court.

Judge Garland has a very limited record on Indian law issues. He was on the panel that decided Ramapough Mountain Indians v. Norton, an unsigned per curiam decision from 2001, that affirmed the Interior Department’s decision not to acknowledge the Ramapough nation.

Of far more significant note, Judge Garland did not write the opinion but joined in the majority in San Manuel Indian Bingo and Casino v. NLRB. It is, of course, impossible to predict how a Justice Garland would rule on a case such as Little River v. NLRB or Saginaw Chippewa v. NLRB.

Update:

Judge Garland wrote the opinion in Klamath Water Users Assn. v. FERC, rejecting the petitioner’s challenge to an electric utility license on Article III standing grounds. Tribal interests opposed the petitioner as intervenors.

Judge Garland wrote the opinion in United States Air Tour Assn. v. FAA, rejecting a challenge to an FAA rule limiting commercial air tours in the Grand Canyon. In footnote 8, he wrote:

The Air Tour Association also argues that the Limitations Rule violates the equal protection component of the Fifth Amendment because it exempts flights to and from the Hualapai Indian Reservation from each tour operator’s annual allocation. See 14 C.F.R. § 93.319(f). The Association’s argument is founded upon Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 227, 115 S.Ct. 2097, 2112–13, 132 L.Ed.2d 158 (1995), in which the Supreme Court held that “all racial classifications … must be analyzed by a reviewing court under strict scrutiny.” In Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974), however, the Court upheld an employment preference for Indians in the face of an argument similar to that of the Air Tour Association, declaring that, “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians,” such treatment must be upheld. Id. at 555, 94 S.Ct. at 2485. And there is no dispute that the Hualapai exception is at least rationally related to “the government’s interest in fulfilling its trust obligation” to the Tribe. Narragansett Indian Tribe v. National Indian Gaming Comm’n, 158 F.3d 1335, 1340 (D.C.Cir.1998). Although the Air Tour Association contends that Adarand effectively overruled Mancari, the Supreme Court has made clear that the lower courts do not have the power to make that determination. See Agostini v. Felton, 521 U.S. 203, 237, 117 S.Ct. 1997, 2017, 138 L.Ed.2d 391 (1997) (“[I]f a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” (internal quotation marks omitted)). And this circuit has continued to apply Mancaripost-Adarand. See Narragansett Tribe, 158 F.3d at 1340.