From CBS News (download the paper here) (How Appealing and Indianz):

Bury My Chance at Supreme Court

Andrew Cohen: Study Shows Indian Tribes Face Long Odds In “Cert Pool” Process at High Court

This coming Monday, the United States Supreme Court will hear oral argument in a case involving the coal royalty rights of the Navajo Nation. It will be the second time the Justices have involved themselves in the dispute. The first time, in 2003, the Court sided with the government, that is to say the Interior Department, which at the request of an energy corporation had blocked a royalty increase to the Nation.

The case was then sent back down to the Federal Circuit Court for a new look. In 2007, that lower appeals court again sided with the Navajo people, ruling that the government had breached its fiduciary duty to the Nation. The Bush Administration again appealed, arguing that a ruling in favor of the tribe would “encourage the filing” of other claims against the Interior Department. And, last fall, the Supreme Court yet again expressed through its certiorari process (the means by which the Court typically agrees to accept certain cases and reject others) a willingness to step in and save the feds in their fight against the tribe.

While the merits of the case are complex, it is a virtual certainty that the Court’s majority will once again reject the claims of the Navajos. That alone might be cause for some serious discussion about the relationship between the Court and American Indians. But thanks to an important study by Michigan State University Law Professor Matthew L.M. Fletcher we now know that there may be a problem that goes way beyond this single case.

Fletcher’s trenchant study, entitled “Factbound and Splitless,” concludes that the “Supreme Court’s certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically,” he writes, “there is a zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty.” A 25 percent acceptance rate for any category of cert petitions is remarkably high in any circumstance-especially when compared with the number of, say, death penalty appeals that are accepted each term.
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