Justice Breyer’s Indian Law Record (1994 to Now)

As I noted earlier in our announcement of his imminent retirement, Justice Breyer was no tribal sovereignty warrior ala Sotomayor, but he was no Indian fighter, either. He was part of the Rehnquist Court Nine that stayed together more than a decade. And, as such, he was also a part of a Rehnquist Court that showed nothing but contempt for tribal interests in the 1990s and 2000s. Justice Breyer’s voting patters are striking for one reason only — he rarely dissented from the Court’s majority in the Indian law docket. He seems to have gone with the flow.

Let’s start with the overall period of time starting with Oklahoma Tax Commission v. Chickasaw Nation in 1995 up ’til now. Justice Breyer voted with tribal interests in 19 out of 48 cases I counted (I excluded a few, like South Florida v. Miccosukee, because it wasn’t an Indian law case; Amoco v. Southern Ute, because Breyer recused; Yellen v. Chehalis, because both sides had tribal interests), or 39.6 percent. Tribes won 19 out of those 48 cases (see what I mean about going with the flow?). Breyer was in the majority in 43 out 48 cases, an 89.6 percent clip. Justice Breyer authored five majority (or plurality) opinions, four of them supporting tribal interests. He wrote a pair of short concurrences in cases tribes lost.

Since 2014, when the Court decided Bay Mills Indian Community v. Michigan, Breyer’s voting pattern changed dramatically to favor tribal interests, again, in tune with the direction of the overall Court. Starting with Bay Mills, Breyer voted for tribal interests 9 out of 11 times. The Court, during that same period, was exactly the same for cases with votes (tribes won two cases 4-4 and we don’t know those votes, but it would be fair to say Breyer was very likely to have favored tribes in those cases, and, again, Yellen, which we don’t count).

In Breyer’s early years, he rarely wrote for the Court. His first Indian law majority opinion (or any opinion, for that matter) was Chickasaw v. US, a loss for tribes, and which came 7 years after he joined the Court (which pushes back on the notion that junior justices get assigned the “chickenshit” Indian law cases).

President Barack Obama reads from his book, “Of Thee I Sing: A Letter to My Daughters,” during a visit by Supreme Court Justice Stephen Breyer and his family to the Oval Office, March 2, 2011. Joining them, from left, are Justice Breyer’s wife Joanna Breyer, grandson Eli Essiam Breyer and daughter Nell Breyer. (Official White House Photo by Pete Souza)

In the good stuff, Breyer wrote the majority opinion in United States v. Lara, certainly a critically important case supporting the notion that Congress can exercise its plenary Indian affairs power to reaffirm tribal inherent sovereignty as in VAWA 2013. Breyer also wrote majority opinions in Cherokee v. Leavitt, the first ISDEAA contract support costs case, and United States v. Cooley, the first SCOTUS decision affirming tribal inherent powers over nonmembers under the Montana rubric. Breyer also wrote for a three-justice plurality in Washington v. Cougar Den.

Justice Breyer also wrote a critically important concurring opinion in Carcieri v. Salazar that articulated the bones of a conceptual framework later fleshed out by Interior allowing Indian tribes not federally acknowledged in 1934 to show that they might still have been under federal jurisdiction then, and therefore eligible to benefit from the fee-to-trust process. He cited the example of the Grand Traverse Band, which has paid dividends to the tribe.

In the bad stuff — and I do mean BAD — Breyer voted with the 5-4 majority in Adoptive Couple v. Baby Girl, swapping places with Justice Scalia, who dissented in favor of a Cherokee birth father. Breyer’s concurrence tries at least to limit the scope of the majority’s incredibly vicious attack on the Cherokee father, but offers absolutely no reason for the vote. Brackeen and all the attacks on ICWA are happening right now because of that vote. Period.

Justice Breyer was also a legal historian and wrote extensively on the Cherokee cases of the 1830s (see my 2010 commentary here). Here is C-SPAN’s video of Breyer’s Supreme Court Historical Society lecture on the Cherokee cases. The positive takeaway? The Court did the right thing and tried to save the Cherokees, very nearly succeeding. The cynical takeaway? The Court did the right thing, ruined its institutional legitimacy for a long time (forever?), and almost started the Civil War — so don’t try.

Justice Breyer to Retire

The Guardian. They don’t hide behind paywalls . . . much.

Riding bus to A2 but will post on Breyer’s Indian law record in a bit. It’s incomplete since the Court has decided to take many, many cases this Term.

Sneak preview . . . He voted with tribal interests about 40 percent of the time, but up through his abomination of a vote in Baby Girl, he voted favorably for tribal interests only 20 percent of the time. This isn’t going to be pretty.

Not sure we’re buying it. . .
Not sure they are, either.

Could Justice Breyer’s Concurrence Help Save Baby Veronica?

Take a look at Justice Breyer’s concurrence. Last paragraph:

Third, other statutory provisions not now before us may nonetheless prove relevant in cases of this kind. Section 1915(a) grants an adoptive “preference” to “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families . . . . in the absence of good cause to the contrary.” Further, §1915(c) allows the “Indian child’s tribe” to “establish a different order of preference by resolution.” Could these provisions allow an absentee father to re-enter the special statutory order of preference with support from the tribe, and subject to a court’s consideration of “good cause?” I raise, but do not here try to answer, the question.

Presumably, the litigation will continue on remand to the South Carolina courts below.


On Justice Alito’s Visit to Pine Ridge

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.

Justice Breyer and “The Yale Lectures”

Available here, drawing from his book Making Democracy Work.

Here is an excerpt:

After the decision [in Worcester], Justice Joseph Story wrote to his wife: “Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.” A few days later, he wrote to another
correspondent: “The Court has done its duty. Let the Nation now do theirs.” Story added: “Georgia is full of anger and violence. . . . Probably she will resist . . . , and if she does, I do not believe the President will interfere . . . .”

And that is just what happened. Georgia said it would resist the decision as a “usurpation” of power. And this is the case about which President Andrew Jackson supposedly said, “John Marshall has made his decision, now let him enforce it.”
The President considered he had as good a right as the Court to decide what the Constitution meant and how it should be enforced. Worcester stayed in jail. John Marshall wrote to Story: “I yield slowly and reluctantly to the conviction that our Constitution cannot last.”

What was wrong with Jackson’s position? The President soon found out. South Carolina, noticing what Georgia could do, decided it would follow suit— but in respect to federal taxes. It passed a law prohibiting the payment of federal customs duties. And Jackson then began to realize the threat to the Union inherent in the principle. He quickly obtained a “force bill” from Congress, authorizing him to send troops to South Carolina. And South Carolina withdrew its law. The press began to write about Georgia and the Cherokees: how did Georgia and Worcester differ from South Carolina and taxes? And Georgia began to back down. It reached an agreement with Worcester, releasing him from jail. And so the Court’s order was ultimately enforced. Or was it?

There is no happy ending here. Jackson sent troops to Georgia, but not to enforce the Court’s decision or to secure the Indians their lands. To the contrary, he sent federal troops to evict the Indians. He found a handful of Cherokees willing to sign a treaty requiring departure; he ignored 17,000 other Cherokees who protested that they would die rather than agree to go; and he forced the tribe to move to Oklahoma, walking there along the Trail of Tears, so-called because so many Cherokees died along the way. Their descendants live in Oklahoma to this day.

This episode suggests a negative answer to Hotspur’s question. The Court may follow the law—even in an unpopular matter. But that does not matter very much. Force, not law, will prevail. The summoned “spirits” will not come.

Justice Breyer on the Cherokee Cases

Justice Breyer’s new book on constitutional law, Making Our Democracy Work, includes an entire chapter on the Cherokee cases. Justice Breyer long has invoked the plight of the Cherokees in talks he has given at various law schools and elsewhere.

Likely, the story of Worcester and the Cherokees is well known by the readers of this blog, and Justice Breyer’s rendition is largely accurate and respectful. He is certainly sympathetic to the Cherokees. ButJustice Breyer uses the Cherokee cases within the framework of his overall thesis in Making Our Democracy Work — the Cherokee cases serve as a warning to the modern Court about the limits of the Court’s power.

Readers of the book familiar with federal Indian law might scratch their heads wondering why the Cherokee cases are used in this way. If anything, federal Indian law post-1832 mostly has been used as a cudgel against the constitutional and property rights of Indian Country.

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