Andrew Cohen on Justice Alito’s Visit to Pine Ridge

Here is the short article in the Atlantic. Here is the Rapid City Journal news article detailing the visit to Pine Ridge, which came at Judge Karen Schreier’s invitation and included a visit to Red Cloud Indian School. Chi-miigwetch to everyone who sent it along.

Mr. Cohen offered three questions he would have asked Justice Alito at Pine Ridge if he could have gone. One on Arvo Mikkanen’s nomination; one on Justice Sotomayor’s dissent in Jicarilla; and one on Factbound and Splitless. He has previously written on all three issues: The Mikkanen nomination here and here; the Jicarilla case here; and Factbound and Splitless here.

Preliminary Results of New Study of Certiorari and Indian Law

While workshopping what would become my tenure paper, Factbound and Splitless, a fairly direct critique of the certiorari process in relation to Indian law cases, at various law schools and with law professors around the nation, I became aware that former Supreme Court clerks were split on the persuasiveness of my critique (I am not a former clerk). Former clerks who were part of the so-called cert pool were usually not persuaded by my argument that the Supreme Court discriminated against tribal interests at the cert stage (and especially my secondary point that cert pool memos and clerks’ opinions had much influence on the Court), while former clerks not part of the cert pool were more interested (and in some cases overwhelmingly supportive) of my thesis. The big breakthrough for me, I think (though it wasn’t anything I could use in the article), was an admission by a former cert pool clerk who seemed skeptical of my claims as a general matter. After my talk was over most people had left the room, however, she conceded that as a clerk, she had treated tribal cert petitions as being about as important as prisoner habeas petitions. Only when the tribe (same with the prisoners) had won below did she spend additional effort on the cert pool memo because (and I am paraphrasing) tribes weren’t supposed to win.

Key to a study of certiorari is the axiomatic notion that the Court usually (though not always, to be sure) grants cert with an eye toward reversing the lower court. Some 70 percent of Supreme Court decisions are reversals, giving significant weight to this understanding. In short, persuading the Court to grant cert (for most petitioners) is more than half the battle toward prevailing, especially given that fewer than one in twenty cert petitions are granted.

Since the 1986 Term, the Supreme Court has granted review in 68 Indian law cases. [Warning, this is a preliminary study, and the numbers below are subject to change, but not significantly.]

  • The Court has granted 14 out of 21 petitions filed by the United States (67 percent)
  • The Court has granted 33 out of 117 petitions filed by states and state subdivisions (28 percent)
  • The Court has granted 13 out of 151 petitions filed by private, non-Indian parties (8 percent)
  • The Court has granted 7 out of 347 petitions filed by tribal interests (tribes and individual Indians) (2 percent) [six of these grants was accompanied by an invitation brief, an amicus brief, or other brief by the United States recommending a grant — in other words, only 1 tribal petition has been granted without the government’s consent]

In cert oppositions, the same trends hold:

  • When state interests are in opposition to a cert petition, the Court granted 7 out 157 petitions (4 percent)
  • When private parties are in opposition to a cert petition, the Court granted 7 out of 78 petitions (9 percent)
  • When tribal interests are in opposition to a cert petition, the Court granted 45 out of 217 petitions (21 percent)

Continue reading

National Law Journal: “Indians Try to Keep Cases Away from High Court”

From the NLJ (downloadable version):

Indians try to keep cases away from high court
Marcia Coyle
March 29, 2010

The Supreme Court has not granted review of any Indian law cases in the current term, but you won’t hear complaints from the Tribal Supreme Court Project.

Most lawyers work hard to keep their lower court victories out of the Supreme Court, but sometimes, fearing hostile justices, they look to avoid the high court even when they have lost.

That’s the position in which the tribal project, a joint venture of National Congress of American Indians and the Native American Rights Fund, finds itself today as it painfully considers its zero-for-five record before the Roberts Court.

“We view this Court as not favorable on our issues,” explained Richard Guest, senior staff attorney at the Native American Rights Fund.

Last term, recalled Guest, the justices granted review in three Indian law cases. “We had prevailed in the lower courts in all three and then lost all three in the Supreme Court,” he said. “We did a little bit better than some folks — environmentalists lost five cases which they had won in the lower courts — but we are all batting zero.”

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and was formed in 2001 in response to a series of negative decisions affecting tribal sovereignty in the mid-1990s, according to Guest.

“We had a winning percentage from 2001 to 2005 but now we’re back to a situation where we are zero for five,” he said.

There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States.

“If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases,” said Guest.

His concern gets some support from a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: “Factbound and Splitless: Certiorari and Indian Law.” From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases decided by the Supreme Court. But since Cabazon, tribal interests have lost more than 75 percent of their cases.

Fletcher, who studied more than 160 cert petitions filed between 1986 and 1994, concluded that the Court’s certiorari process itself is a barrier to justice for tribes and individual Indians. Cert pool memos by the Court’s law clerks showed, he reported, that clerks overstate the merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.

“Tribal petitions, often involving the interpretation of Indian treaties or complicated and narrow common law questions of federal Indian law, are readily deemed ‘factbound’ and ‘splitless,'” explained Fletcher. “Conversely, the cert pool values and perhaps better understands the interests of state and state agency petitions, as well as the way the pool’s audience (the Court) understands and values the interests of states. Thus, the pool’s recommendations favor states and state agencies far more. The result, frankly, is that tribal petitions on a question will almost never be favored, whereas state petitions on the same question will often be favored.”

Fletcher concluded, “While the admonition that tribal interests should do their very best to avoid the Supreme Court is not new, the findings of this study also demonstrate with increased force and clarity that Supreme Court adjudication is an extraordinarily hazardous process for tribal interests.”

Continue reading

“Factbound and Splitless” Available Online

Here and here (Factbound and Splitless):

Factbound and Splitless: The Certiorari Process as Barrier to Justice for Indian Tribes

Matthew L.M. Fletcher

The Supreme Court’s certiorari process does more than help the Court parse through thousands of “uncertworthy” claims—the Court’s process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration. But this empirical study of 163 preliminary memoranda, recently made available when Justice Blackmun’s papers were opened, demonstrates that the Court’s certiorari process is neither objective nor neutral. The research, reflecting certiorari petitions filed during October Term 1986 through 1993, demonstrates that statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari to far more petitions filed by opponents of tribal sovereignty.

Andrew Cohen’s CourtWatch and “Factbound and Splitless”

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.
Continue reading

How Appealing Profiles “Factbound and Splitless”

From How Appealing:

“MSU scholar says Indians face Supreme Court bias”: The Michigan Messenger yesterday posted online this item about a paper titled “Factbound and Splitless: Certiorari and Indian Law” by law professor Matthew L.M. Fletcher.

“Factbound and Splitless” Profiled on SCOTUSBlog

From SCOTUSBlog:

Matthew L.M. Fletcher (Michigan State University College of Law) has posted “Factbound and Splitless: Certiorari and Indian Law” on SSRN, see here.  This article engages in an empirical study of 162 certiorari petitions that were filed in Indian Law cases between 1986 and 1994.  To my knowledge, this is the first attempt to systematically analyze certiorari petitions in tribal cases.  Professor Fletcher concludes that petitions brought by tribes during the period studied were often denied by the Court as factbound and splitless, while state and local governments received much more favorable treatment at the certiorari stage in tribal cases.  Although I must confess that I do not agree with some of the conclusions reached in this paper, Fletcher’s article is thought-provoking and interesting. [David Stras]