Federal Indian law is at a dead end in the Supreme Court, but a new Justice – a transformative Justice – could shake the Court out of its current rut. But it’s a stretch….
Only time will tell whether President Obama’s nominee to replace Supreme Court Justice David Souter – Judge Sonia Sotomayor – will be sufficient to transform federal Indian law from its current status as a backwater of constitutional law. And there is no doubt that the Court’s view of federal Indian law and policy – and particularly Indian tribal government – is stagnant and atavistic. The Court is in need of a visionary mind to help refocus its collective mindset about Indian law and policy.
Judge Sotomayor will be only the third racial minority and the third woman on the Supreme Court. Importantly, she will be the first minority Justice with an inkling about the special property and political rights of certain minority people — in her case, the people of Puerto Rico. In some ways, American Indians and Puerto Ricans have much in common. In large measure, neither group wants complete integration into the American polity, preferring an existence on the fringes of the United States. This alone may help to shake up the mentality of the rest of the Justices, who seem a bit suprised and annoyed that Indian people don’t want to give up their separate political and ethnic identities.
The addition of one President Obama-appointed Justice is very unlikely to make much of a difference, except in a case or two over the course of years. A Justice Sotomayor may be a simple replacement for Justice Souter’s vote in Indian law cases. Souter’s votes tended to favor tribal interests in treaty and trust cases, but went against tribal interests in taxation and jurisdiction cases. Flipping Justice Souter’s vote in a tax or jurisdiction case would not have made any difference in the outcome of any major case in the last ten years, so the impact of a new Justice is muted.
However, and this is a huge if, a new Justice could force the remainder of the Justices to reconsider Indian law principles. Right now, as we opined yesterday, the Court merely ignores inconvenient Indian affairs history or Congressional intent or its own precedents. A transformative Justice could at least force the Court to address history, to address foundational principles. That might be enough to preserve the votes of Ginsburg, Breyer, and Stevens, JJ. And it might be enough to pick up a vote from Justice Kennedy, or even Justice Alito, who is as close to a blank slate on Indian law as any of the Justices. Who knows?
Turtle Talk 