Coverage of the Herrera v. Wyoming argument, here.
Angelique EagleWoman sent around this short article commenting on Justice Sotomayor’s judicial philosophy, which contains this remark:
In literally every case involving Native American rights in any form, Sotomayor has always sided with the Natives. In Match-E-Be-Nash-She-Wish Band v. Patchak, U.S. v. Jicarilla Apache Nation, Salazar v. Ramah Navajo Chapter, and most recently in Adoptive Couple v. Baby Girl, Sotomayor has taken the side of the Native American parties, even if that meant her being one of the only dissenters, if not the sole dissenter.
Thus, even though Sotomayor can be accurately labeled as “liberal, but unpredictable,” she’s still quite predictable in cases involving Native rights.
As an advocate for most tribal causes, I find it refreshing to see a Justice take an interest in Indian law and tribal interests. Even when she’s in dissent, which she will be nearly every time until (and if) there is a massive shift in the Supreme Court, she gives a voice to the tribal advocates and their cause that has been missing since the retirements of Justices Blackmun and Brennan (and, I would argue, the entire history of the Supreme Court and the federal judiciary). In fact, Justice Sotomayor’s SCT record is far better than tribal advocates could have hoped when President Obama nominated her.
But a word of caution. My sense is that the strong dissents coming from Justice Sotomayor are being heard by those on the Court in opposition to her views — and they are responding in kind. I read Jicarilla and Adoptive Couple (despite the real and continuing tragedy of that case) as being very narrow questions, but looking at the majority opinions, there are broad statements directly attacking important understandings of tribal interests that might not have appeared in a majority opinion except in response to a strong dissent. Would Justice Alito have made such damning remarks about the trust responsibility and the Indian Child Welfare Act unless the legal positions the majority adopted had not been so powerfully attacked by Justice Sotomayor? I wonder.
An analog of sorts are the equal protection cases, where there is simply no full-throated defense of marriage equality from the liberals on the Court so terrifically and justifiably worried about losing Justice Kennedy’s vote. When you’ve the votes, you don’t need to defend the position as much. But, in the case of affirmative action, where the last strong defense of AA came in Bakke, the liberal side’s analysis hasn’t been developed at all. It has hurt in the long run.
In sum, Justice Sotomayor’s dissents are outstanding and powerful, and much of what she argues may one day become the law. At least someone on the Court is making those arguments. And I suspect the majority knows, like Justice Scalia admitted in other contexts, that they’re on the wrong side of history; hence, the expansive dicta. And to lower court judges, dicta is the law. Tribes are timeless entities. But there’s a long slog ahead.
P.S. I thank Yale law prof. Reva Siegel, whose scholarship and comments significantly influenced these views of mine.
Of course, too much will be read into this. The last time this happened, when Justices Breyer and O’Connor visiting the Spokane and Navajo tribal courts at the behest of NAICJA, it was part of a program that culminated in a symposium at the National Judicial College. Justice Alito’s visit did not seem to have the same educational focus, but is a very good thing anyway. The more the Supreme Court Justices know, the better.
Thanks to Peter Vicaire’s Supreme Court “report card,” we know that Justice O’Connor sat in on eight Indian law cases after her visit. She voted in favor of tribal interests in five of those cases (Chickasaw, Navajo, White Mountain Apache, Lara, and Cherokee Nation v. Leavitt), and against three times (Inyo County, Sherrill, and Wagnon). As a swing Justice, her vote was significant — tribal interests won three of the five cases in which SOC voted in their favor, and lost all three in which she didn’t. Prior to the July 2001 visit, she voted in favor of tribal interests in 9 out of 39 cases (23 percent).
Justice Breyer has voted in favor of tribal interests in only 4 of 13 cases since July 2001 (31 percent), a markedly worse record than SOC’s post-visit record. His positive votes were in White Mountain, Lara, Cherokee Nation, and Plains Commerce Bank (tribal interests won three of those). His negative votes were in Chickasaw, Navajo, Sherrill, Wagnon, Carcieri, Hawaii, Navajo II, Tohono O’odham, and Jicarilla (tribal interests lost all of these cases; none of them were even close). His pre-visit record was about the same, maybe a little better — 5 out of 19 (26 percent). His most interesting vote was in Plains Commerce, where he added a fourth vote in a tribal court jurisdiction case. Maybe his improved knowledge about tribal courts played a role? His opinion in Carcieri was a nice touch as well, an effort to limit the import of the outcome.
All in all, the track record of any Justice isn’t going to change a whole lot unless the kinds of cases changes. We keep seeing the same kinds of claims — demands for immunity from state taxation, suits for money damages against the United States, and the like. Yes, the facts of the cases are incredibly compelling, and demand real justice (at least the claims against bad actor governments), but they’re losers more often than not in Supreme Court no matter who you are (the lower courts is another matter). The only winning cases are treaty rights and statutory interpretation cases, and even those are just toss-ups (but even toss-ups sound good, don’t they?).
In the future, tribes asserting a kind of progressive, creative, and necessary kind of sovereignty are going to win in the Supreme Court. Visits by Justices to Indian country to learn about tribal law enforcement will give them something useful to think about when presented with claims about how it is almost impossible for the feds to prosecute non-Indian violent crime. Visits to learn about Indian schools (like Red Cloud) and tribal governance overall are helpful now, too (and isn’t there a self-governance cert petition pending right now??!?!). Learning about how every dime of the profits of tribal enterprises goes to fund Indian education, public safety, housing, jobs, etc. (and not to individual per caps, for example) might be persuasive in a sovereign immunity case or something.
So Justice Alito’s visit might be illuminating for him, give him and his colleagues needed context, but only in the right cases.
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.
It may have gone unnoticed, but Justice Alito’s concurring opinion in Brown v. Entertainment Merchants Assn. listed a game where the “goal is to rape Native American women…” in his list of awful games offered by the video game industry. His citation for that game was a 1982 issue of People Magazine, available here (Custer Article). An old game, but it definitely is part of an ugly theme in Indian law and policy — sexual abuse of American Indian women.
U.S. Supreme Court Justice Samuel Alito Jr. made his first visit to the city Monday, making time to tour the area before renewing the Lawyer’s Oath for a group of Catholic lawyers during the annual Red Mass at the Cathedral of Saint Andrew.
“I enjoyed it very much,” Alito said of his trip to Grand Rapids.
He said the Red Mass teaches judges and lawyers there are “solemn responsibilities” that come with the job.
Members of the Catholic Lawyers Association of Grand Rapids and the diocesan Canon Lawyers gathered Monday night for the Mass, celebrated by Bishop Walter Hurley.
The Red Mass — named for the color of the robes historically worn by jurists — is held near the onset of every Supreme Court session.
From the BLT:
The long-running dispute over the appropriateness of the “Redskins” name for the Washington D.C. NFL football franchise reached the Supreme Court today. Philip Mause, partner at Drinker Biddle & Reath in D.C., representing a group of Native Americans offended by the name, filed a petition for certiorari in the case titled Susan Harjo v. Pro-Football, Inc.
“This is a derogatory term for Indians that sticks out like an anomaly,” said Mause today. “No other group still has to deal with this kind of a term being used” in such a public and widespread way.
The case began with a petition in 1992 to cancel the Redskins trademark under the Lanham Act, which bars trademarks that “disparage … persons living or dead … or bring them into contempt, or disrepute.” The latest ruling by the U.S. Court of Appeals for the D.C. Circuit found that the claims were barred by the doctrine of laches, a defense that acts like a statute of limitations to protect defendants from being sued for long-ago violations of rights.
But Mause asserted that the doctrine does not apply, because the law explicitly allows cancellations of trademarks “at any time.” He cites a 2001 ruling by the U.S. Court of Appeals for the 3rd Circuit in Marshak v. Treadwell, in which now-Justice Samuel Alito Jr. said trademark cancellation claims are not time-barred. “We hope that ruling will be of some help,” said Mause.
In a footnote in the brief, Mause also suggested that “the views of the United States may be helpful to the Court.” Mause said the U.S. trademark office has sided with the Native Americans in the past, but the government has not spoken on whether the Supreme Court should take up the issue. Even without the government filing a brief, it is unlikely the Court will act on the petition before the end of this year, Mause indicated.
From the Onion:
Although three years have passed since both men joined the court, Chief Justice John Roberts, 54, and Associate Justice Samuel Alito, 59, said they still feel foolish whenever more senior justices refer to cases decided “way before” they joined the court. “One time—one time—I asked what World-Wide Volkswagen v. Woodson was, and Stevens goes off on this tear about me still being in diapers when Earl Warren was inventing Miranda rights,” Alito said of the 88-year-old justice appointed by President Gerald Ford. “God, sorry I didn’t get my law degree before World War I, geez.” According to court clerks, the two younger justices occasionally get so frustrated with the constant teasing that they take a bus to go spend time with their friends in the 9th Circuit.
From the NYTs:
Justice Samuel A. Alito Jr. is getting out of the pool.
For almost 20 years, eight of the nine justices on the Supreme Court have assigned their law clerks to a shared legal labor pool that streamlines the work of reviewing incoming cases.
Only Justice John Paul Stevens has declined to participate. He relies on his own clerks to help cull perhaps 80 worthy cases from the thousands of appeals, called petitions for certiorari, that reach the court each year. The justices who participate in the arrangement, known around the court as the “cert. pool,” receive a common “pool memo” on each case from a single clerk. The memo analyzes the petition and makes a recommendation about whether it should be granted.