Reflections on Justice Kennedy’s Indian Law Legacy

My most enduring memory of Justice Kennedy is no doubt watching him lean over the bench, red faced and angry, screaming/yelling/lecturing at Neal Katyal during the Dollar General oral argument. I concluded then, if I hadn’t already before that moment from his writings, that Justice Kennedy was so disturbed by tribal jurisdiction over non-Indians and non-Indian businesses that he angrily wanted to protect a non-Indian sexual predator from the horror of being subject to a tort claim in tribal court.

Justice Kennedy was confirmed for SCOTUS in 1988. His first vote in an Indian law case was in Oklahoma Tax Commission v. Graham. His last vote in an Indian law case was in the Upper Skagit matter (he recused in the culverts case). During his tenure, tribal interests cleanly won 15 cases and cleanly lost 40 cases. There were two cases in which there were two or more issues in which tribal interests won and lost. There were three cases decided by 4-4 tie votes (including one which Kennedy was recused), and in which tribal interests had prevailed below. There were two non-criminal cases in which the interests of individual Indians were at play, making it difficult to declare it a clean win or loss for tribal interests. There was one case the Court remanded (not talking about Upper Skagit) without a clear winner. In short, it was/is a bad time for tribal interests — just under a 30 percent win rate for tribes, adding in the tie cases.

Justice Kennedy’s voting record was overwhelmingly oppositional to tribal interests. Kennedy voted cleanly in favor of tribal interests 11 times (and that includes Lara, in which he wrote a scathing opinion blasting tribal powers, and nearly half of those votes were in the past few years), and voted cleanly against tribal interests 45 times. There was one case where voted to split issues. We can and should presume he was an anti-tribal vote in both of the 4-4 tie cases (and would have been a deciding vote against the tribes and the US in the culverts case had he not recused). I count just under a 20 percent pro-tribal vote rate for Justice Kennedy.

Justice Kennedy wrote relatively few Indian law opinions, as few as Justice Scalia. It should be clear to observers that during this period, Chief Justice Rehnquist, Justice Thomas, and junior justices carry the conservative side’s laboring oar in Indian law, not right wing stalwarts who write the federalism and anti-civil rights opinions.

The most important majority opinion Justice Kennedy wrote was Duro v. Reina, though Rice v. Cayetano comes in a close second. Duro really shouldn’t be considered an important opinion because it was so clearly wrong on so many levels Congress enacted a temporary Duro fix within weeks of its announcement, making the fix permanent within a year or so. Perhaps because the principles Justice Kennedy advanced in Duro were principles he had been working with in his own mind since at least the 1970s when he dissented as a Ninth Circuit judge in Oliphant [544_f.2d_1007] — this is America where Americans must consent to government and non-Indians cannot choose to be subject to tribal jurisdiction because they cannot be tribal citizens — he seemed to ache to have an opportunity to strike down the Duro fix. His concurring opinion in United States v. Lara lays out how his consent theory would be enough to kill the Duro fix and all but asks the Court to seek a vehicle out for review, a vehicle that never came (sorry Russell Means, you shouldn’t have hired a lawyer). Maybe the biggest problem for Kennedy’s consent theory is that it’s completely farcical and simply not grounded in the Constitution or reality (try driving from Michigan to New Mexico just to vote, not that I would have voted for Gavin even if I could vote — go Deb Haaland!).

For all my criticism, I have a favorite Kennedy opinion, his lower court opinion in United States v. Finch [548_f.2d_822], a precursor to the Montana v. United States case in which SCOTUS held that the Crow Nation did not possess the Big Horn River. Kennedy wrote strongly in favor of the tribe’s ownership, guaranteed by treaty, an opinion that shows how completely misguided Justice Rehnquist’s Montana decision actually was. If he had been that judge during his tenure as a Supreme Court judge he’d be celebrated, even worshipped, by Indian country. Instead a collective “meh” upon his retirement, Indian country would be mourning the retirement of a great justice.

David Perez on Why GOP is Wrong on Constitutionality of Tribal Court Provisions in VAWA Reauthorization

Here. An excerpt:

First, let’s be clear: Senator Grassley’s bold assertion that Native Americans cannot serve as impartial jurors is simply racist. The Sixth Amendment’s right to jury grants you the right to have a jury selected from the community in which the crime took place.  If a Native American committed an act of violence in Senator Grassley’s own Butler County, Iowa, chances are he’d face an all-White jury. That’s because Butler County is 98.95 percent White, and only 0.05 percent Native American. But I doubt Senator Grassley thinks that a Native American defendant couldn’t get a fair shake from his hometown Hawkeyes.  And there’s no reason to think that Native American jurors would act differently.

The other purportedly constitutional objection to the tribal protection provision stems from a 1978 Supreme Court case that originated right here in Washington state: Oliphant v. Suquamish Indian Tribe.  Suquamish tribal authorities arrested two men, Mark Oliphant and Daniel Belgarde, for crimes committed on Suquamish tribal lands. The defendants argued that the tribe could not charge them with any crime, no matter where it was committed, because they weren’t Indians. The Supreme Court agreed, but its reasoning is what’s most important: the Court never held that it was unconstitutional for tribal authorities to charge and try non-Indians, but rather that Congress’s “various actions and inactions in regulating criminal jurisdiction on Indian reservations demonstrated an intent to reserve jurisdiction over non-Indians for the federal courts.” Put differently, Congress just had to change its mind.

In a similar case about ten years later, Duro v. Reina, the Supreme Court determined that under existing federal law one tribe could not exercise criminal jurisdiction over an enrolled member of another tribe. So what happened? Congress simply changed its mind—and the law—to allow tribes to prosecute members of other tribes, explicitly overruling the Duro decision. Most recently, in 2004, the Supreme Court echoed this point by concluding, in United States v. Lara, that Congress has the power to “lift or relax” restrictions on tribal jurisdiction over criminal matters.

That’s what Congress is trying to do with these new VAWA provisions.  It’s not a constitutional hurdle—it’s a legislative one.  And the Senate just voted to remove that hurdle.

Scalia Memorandum to Brennan in Duro v. Reina

In the spirit of posting old documents (see our Nixon post yesterday), we are delighted to present a find from the late David Getches’ papers (many, many thanks to Jane at the Colorado Law Library for hunting for this and sending it along!):


Here is an image of the memo, which David made a centerpiece of his deeply influential California Law Review article, “Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law .” Jane believes David or his RA made the marks on the memo.

Connecticut Law Review Note Profiles GTB and Criminal Jurisdiction

Benjamin J. Cordiano published “Unspoken Assumptions: Examing Tribal Jurisdiction over Nonmembers Nearly Two Decades after Duro v. Reina” in the Connecticut Law Review. Here is an excerpt from the abstract:

This Note examines the Supreme Court’s reasoning in Duro and uses nearly twenty years of anecdotal evidence, case law, and congressional findings to show that the Court relied on flawed assumptions about the nature of nonmember criminal jurisdiction in the modern tribal context. By examining the modern realities of two tribes, the Grand Traverse Band of Ottawa and Chippewa Indians and the Confederated Tribes of the Colville Reservation, this Note concludes that the Supreme Court’s reasoning in Duro is flawed and that criminal jurisdiction over nonmember Indians is crucial to tribal self-governance and maintenance of reservation life.

US v. Gabrion — Federal Criminal Jurisdiction in Manistee National Forest

Here is the opinion in US v. Gabrion. It raises an interesting question whether there is federal criminal jurisdiction in national forests. The court, 2-1, found that the US does have criminal jurisdiction over national forest lands, in this case, the Manistee National Forest. Judge Moore’s concurring opinion delved into federal Indian law in response to the appellant’s claim that state and federal concurrent jurisdiction over national forest lands was a violation of equal protection (it isn’t — just ask an Indian):

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