Caitlin Halligan

Two Nominees to the D.C. Circuit Court

Kate Fort

From SCOTUSblog, principal deputy U.S. Solicitor General Sri Srinivasan and Caitlin Halligan were both nominated by President Obama to fill vacancies in the D.C. Circuit. Halligan was nominated previously, which we covered here. The DC Circuit is generally considered a path to a Supreme Court nomination, as well as handles a fair amount of Indian law cases.

Srinivasan has argued before the Supreme Court more than 20 times. In his job with the SG he represented the federal government in Cherokee Nation v. Leavitt (contract supports case).

As a private attorney with O’Melveny & Myers, he represented the Hawai’ia Congressional Delegation as an amicus in Hawaii v. Office of Hawaiian Affairs. There the Supreme Court overturned the Hawaii Supreme Court’s decision that the state couldn’t sell ceded lands before settling Native Hawaiian claims, based on the Apology Resolution passed by Congress. His brief argued for upholding the Hawaii Supreme Court:

Contrary to the contentions of petitioners and the United States, the Apology Resolution is more than “simply an apology” (Pet. Br. 30) “whose sole effect is a moral one” (U.S. Br. 30). Rather, the Resolution by its terms constitutes an official, definitive recognition and acknowledgment by Congress of the United States’ culpability for the illegal overthrow of the Kingdom of Hawai’i and of the Native Hawaiians’ unrelinquished claims to their ancestral lands. That acknowledgment differs from other statutes and resolutions that have expressed Congress’ regret for acts that had already been recognized as wrong or unlawful. See U.S. Br. 29-30 (describing resolution apologizing for “slavery and Jim Crow”). The Apology Resolution instead ended a long-running debate over the United States’ actions in Hawai’i over a century ago.3 The Supreme Court of Hawai’i properly relied on those considered findings, and Congress’ express support of the ongoing reconciliation with the Native Hawaiian people, to inform its ruling below.

D.C. Circuit Nominee Argued Sherrill v. Oneida on Behalf of N.Y. State in Supreme Court

Matthew L.M. Fletcher1 Comment

Caitlin Halligan argued on behalf of the State of New York (argument is here). She is an Obama nominee to the D.C. Circuit (and apparently authored a law school note that may or may not be controversial). This is not to imply an objection to her candidacy, but to note her experience in Indian law.

Update: Ironically, even Ms. Halligan declined to take advantage of Justice O’Connor’s suggestion that tribal sovereignty could be lost through the passage of time. Here is the beginning of her argument:

Argument of Caitlin J. Halligan

Mr. Halligan: Justice Stevens, may it please the Court:

The state of New York was granted time to address the third question regarding the 1838 treaty which we believe requires reversal of the decision below because it disestablish the Oneida reservation.

Respondents claim that there is not exercised sovereignty over any part of land they buy within a vast 300,000 tract in Central new York.

This has long been inhabited–

Justice O’Connor: Is sovereignty something that the tribes can lose by inaction over a period of time?

Mr. Halligan: –I believe that it is, Your Honor, for the reasons that are laid out in petitioner’s brief but regardless of what the Court decides about that question, the Treaty of 1838 clearly disestablishes the reservation which terminates all sovereignty prospectively.

The argument from there is largely treaty-based.