Newcombe: “Examing the Oral Arguments in Dann”

From Indian Country Today:

The Internet is amazing. I came across the audio (along with a written transcript) of the 1984 oral arguments in the case U.S. v. Dann. By listening to the audio recording, we are able to experience the arguments made 24 years ago before the Rehnquist Supreme Court regarding the issue of Western Shoshone land rights.

Robert McConnell, Assistant U.S. Attorney General, argued on behalf of the United States, which was suing Mary and Carrie Dann for allegedly trespassing on ”public lands” (Western Shoshone lands) by grazing their livestock without a permit from the Bureau of Land Management. McConnell opened by saying: ”Mr. Chief Justice, and may it please the Court, this case comes before this Court on writ of certiorari to the Ninth Circuit Court of Appeals. It concerns the finality effect of Section 22(a) of the Indian Claims Commission Act.”

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Tales from the Cert Pool: Circuit Splits and Federal Indian Law

Most cases now reach the Supreme Court because of circuit splits or splits in authority between federal courts of appeal and state supreme courts, but federal Indian law is an exception. In my study of the digital archive of Justice Blackmun’s cert pool memos from docket years 1986-1993, perhaps a quarter of cases that attracted the Court’s attention (reaching the so-called “discuss list” at conference) did so because there was a split.

One reason for the lack of circuit splits in federal Indian law is geography — well over 80 percent of cert petitions arise out of the Eighth, Ninth, and Tenth Circuits (and the states located within those circuits).

Moreover, because the cert petition subject matters are based on treaties or statutes that apply only within a state or a region, there is little likelihood of there ever being a split where the federal circuit and the state supreme court agree. Two examples from my forthcoming paper, “Factbound and Splitless”:

In South Dakota v. Spotted Horse, the Justice Blackmun’s clerk wrote a supplemental memo to the cert pool memo in which she wrote, “As the poolwriter noted, there will never be a split on the question of South Dakota’s jurisdiction over these tribal highways because both CA8 and the S.D. SCt agree that the State is without jurisdiction.” In Tarbell v. United States, a criminal case involving the application of a federal statute that applied to New York Indians, the cert pool memowriter (Mark Snyderman, an O’Connor clerk) noted, “Of course, NY state is probably the only other jurisdiction that would have an opportunity to rule on the issue.”

In one famous instance, the Court granted cert in a case thinking there was a circuit split when there really wasn’t (or more accurately, the split dissolved when the Court decided the case). The cases were Anderson v. Wisconsin Dept. of Revenue and Oklahoma Tax Commission v. Sac and Fox Nation. In Anderson, the WI Supreme Court ruled that Indians living off the rez but working on the rez have to pay state income taxes. In Sac and Fox, the CA10 ruled that Indians living on trust land and working for the tribe on trust land don’t have to pay tax. That’s the split, but the split disappeared when the Court decided that trust land is the same as “Indian Country” — making the factual predicate for the split (the residence of the tribal member: one was off, one was on) disappear.

I go into greater depth in the paper, but the story basically is this. The OTC’s petition in Sac and Fox reached the Court first, but neglected to mention the Wisconsin case. The Wisconsin case reached the cert pool next, alleging the split in authority. The cert pool writer thought the Sac and Fox case was factually messier (because of the trust land question) so recommended the Court grant cert in Anderson. Also, the cert pool memowriter argued that the OTC was a bad litigant for not noting the split in the first place, so recommended that the Court go for the Wisconsin case instead. But Anderson filed indigent, and he shouldn’t have, so the Court had to order him to comply with SCT rules before his appeal would proceed. In the meantime, the Court decided to hear Sac and Fox instead. The Anderson pool memo is here and the Sac and Fox memo is here.

And it’s good thing too. Bill Rice’s mastery of oral argument before the Supreme Court can be heard here (with a little help from Edwin Kneedler).

Had the Court decided Anderson instead, it seems clear to me that it would have ruled against Anderson, who was living off the rez and refusing to pay state income taxes. Who know what would have happened to Sac and Fox Nation?

Tales from the Cert Pool: Cherokee Nation v. US (Arkansas River Navigation System claim)

The Cherokee Nation brought suit against the United States over the Arkansas River Navigation System, arguing that the government’s actions violated the “fair and honorable dealings” language of the Indian Claims Commission Act, 25 U.S.C. 70a. The Court denied the petition.

The cert pool memo in the case includes some of the most exasperated language from a clerk in any of the Indian law related cert pool memos in the Blackmun Digital Archive:

In providing for ‘claims based upon fair and honorable dealings that are not recognized by any existing rule of law or equity,’ [25 U.S.C. § 70a] Congress invited litigation on a potentially limitless class of so-called ‘moral’ claims against the govt. … But how’s a ct to tell when the govt has done something that, while permissible under law and equity, is nonetheless ‘unfair,’ ‘dishonorable,’ or ‘immoral?’ Over the years, the cts have tried to give shape to the inquiry by requiring a tribe asserting a moral claim to demonstrate a relevant ‘special relationship’ with the fed govt. Yes, as this case shows, that inquiry can be as amorphous as the one it’s supposed to clarify. Arguably, in the words of one judge, having a ‘special relationship’ w/ the govt means simply ‘that though there is no contract or treaty obligation, or formal trusteeship, honor may oblige the United States to take steps to protect Indians…. What honor requires depends on circumstances and will vary from case to case according to the conscience of the court.’ [United States v. Oneida Indian Nation of New York, 576 F.2d 870, 883 (Ct. Cl. 1978) (Nichols, J.).] Given the strangeness of the entire inquiry, one cannot easily evaluate either the merits or the certworthiness of petr’s claim.

Cert Pool Memo at 8-9, Cherokee Nation of Oklahoma v. United States, 504 U.S 910 (1992) (No. 91-1354).

What’s even more interesting is the annotation added to the memo by Justice Blackmun’s clerk, who is identified as “NB”:

I would not want to see the Ct take this case. Because it is not one the Ct would handle well, it would likely declare the provision to be unenforceable. (Imagine the opn of Scalia, J.) I think in the long run your friends are best served by denying cert.

Id. at 11.

Talk Announcement: “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law” @ UM Law School

Your humble blogger will be giving a talk at the University of Michigan Law School (co-sponsored, I understand, by the U-M NALSA and the Michigan Journal of Race & Law) on November 12, 2007 at 12:20 PM in Room 150 of Hutchins Hall.

My talk will be called, “Factbound and Splitless: The Impact of the Certiorari Process on Federal Indian Law.”

Here’s the blurb I gave the students on this talk:

I have reviewed each of the 144 Indian law-related cert petitions filed in the Supreme Court from the 1986 to 1993 Terms. Tribal interests began losing 75 percent of their cases in the Court starting in 1987, a significantly worse win rate than even convicted criminal petitioners. I argue that the critical factors the Court looks for in deciding whether to grant cert — “circuit splits,” cases of national “importance,” and cases that are not “factbound” — create structural (and yet wholly discretionary) barriers to the vindication of tribal interests in Supreme Court adjudication.

If you want to read the documents I’ve read in this study, check out the Digital Archive of the Papers of Harry A. Blackmun. And bring your docket numbers, because that’s how it’s organized.