Chief Justice Roberts

Legal Times Coverage of the Plains Commerce Bank Argument

Matthew L.M. Fletcher

From the Legal Times (H/T Indianz):

The first Supreme Court oral argument Monday morning was all about Native American law and the jurisdiction of tribal courts. But Chief Justice John Roberts Jr. took the debate in an unexpected direction — across the Atlantic to southern Europe.

The issue in Plains Commerce Bank v. Long Family Land & Cattle was whether tribal courts have jurisdiction over a dispute between a nontribal bank and a company that is majority Indian-owned. More than 51 percent of the owners of the South Dakota ranching company in the case are members of the Cheyenne River Sioux Tribe, and, as such, the company was entitled to loan guarantees from the Bureau of Indian Affairs.

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Slate: A New Way of Judging the Ideology of Supreme Court Justices

Matthew L.M. Fletcher

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.)

Chief Justice Roberts & Federal Indian Law

Matthew L.M. Fletcher

Long before John G. Roberts, C.J. became life-tenured, he practiced. And he worked on at least three Indian law-related cases: Alaska v. Native Village of Venetie, Rice v. Cayetano, and (briefly) Roberts v. United States. Also, as part of President Reagan’s Office of Legal Counsel, he vetted several Acts of Congress related to Indian tribes.

Roberts won Venetie, representing the State of Alaska. He lost Rice, representing the State of Hawaii. And the Court denied his petition for cert on behalf of Hollis Roberts (no relation, one presumes) in Roberts v. U.S.

The now semi-notorious brief Roberts filed in Alaska v. Venetie is here: Venetie Petr Brief. It is notorious for the reversal of the “deadliest enemies” language in United States v. Kagama. The Kagama Court wrote that states and state citizens were the deadliest enemies of Indians and Indian tribes, but the Venetie brief (for no real good reason) altered the quote to mean that Indians and Indian tribes were the deadliest enemies of states and state citizens. Here’s my own paper on the archaic notion that states and tribes are “deadliest enemies.”

Hawaii’s brief in Rice v. Cayetano is here: Rice Resp Brief

Roberts’ cert petition in Roberts v. US is here: Roberts v. United States Cert Petn. This one is especially important since Roberts (and Roberts) brought a challenge to Section 465, the fee to trust statute. There is ongoing litigation involving Section 465 that may soon be appealed to the Supreme Court. To some extent, the legal challenge to Section 465 has morphed since the 1999 cert petition, but it is significant that Roberts, C.J. is aware of this kind of case.

Finally, we include the documents Roberts wrote as a member of the OLC. These came out during his Senate confirmation process.

Kickapoo OLC Memo

Reagan Indian Policy OLC Memo

Tribal Tax Status Act OLC Memo

Utah Paiute Act OLC Memo

Zuni OLC Memo

Shoalwater Bay OLC Memo

Las Vegas Paiute OLC Memo

I guess what these memos demonstrate is that young Roberts was a serious conservative and a funny guy (unless you were the subject of the humor).