Angela Riley: “Native American Lands and the Supreme Court”

Angela Riley has posted her very impressive paper, “Native American Lands and the Supreme Court,” published in the Journal of Supreme Court History, on SSRN.

Here is the abstract:

The Supreme Court has been instrumental in defining legal rights and obligations pertaining to Indian lands since its first path-making decision in the field in Johnson v. McIntosh in 1823. But the groundwork for the Court’s contemplation of such cases predates Supreme Court jurisprudence, and it in fact predates the formation of the Court and the United States itself.

When Europeans first made contact with this continent, they encountered hundreds of indigenous, sovereign nations representing enormous diversity in terms of language, culture, religion, and governance. For those indigenous groups — as is a common attribute of indignity of similarly situated indigenous groups around the world — this land was and is holy land. Indigenous creation stories root Indian people in this continent — Turtle Island to many — as the focal point of life, creation, religion, culture, and language. In the settlement of the country, the colonial powers initially — and the United States subsequently — treated with Indian nations to negotiate the transfer of lands from Indians to Europeans, often in exchange for peace or protection.

Prof. Riley had previously presented this paper to the Supreme Court historical society, which was televised on C-SPAN.

C-SPAN: Angela Riley on “Native American Lands in the Supreme Court” before the Supreme Court Historical Society

From the website:

Angela Riley spoke in the Supreme Court chamber about the history of the Supreme Court and Native American lands. The lecture, which took place in the Supreme Court chamber, was one in a series hosted by the Supreme Court Historical Society on the Constitution, the Supreme Court, and property rights. Justice Ruth Bader Ginsburg introduced Professor Riley.

Video here.

Commentary on Supreme Court’s Denial of Oneida Land Claims Petitions

Two things immediately spring to mind on the denial of the Oneida land claims petitions.

The first is that the federal government’s persuasive oomph (with the OSG as the so-called “Tenth Justice”) loses a ton of force when siding with tribal interests. No big surprise to me there. But it must be a little strange for the Justices to see the United States so vehemently demanding to be let off the hook for their breaches of trust toward Indian tribes in Tohono O’odham and Jicarilla and almost in the same breath ask for the Court to review Indian land claims dismissals. The government’s filings before the Court in Indian affairs are two-sided, even a little schizophrenic.

Second, Justice Ginsburg seems to be stepping in Justice Stevens’ role as the the most senior Justice with an interest in limiting the damage to tribal interests in the Supreme Court. And like Justice Stevens, she wrote some negative opinions against tribal interests. But her earlier opinions appear to have swaths of broad dicta that lower courts and the Supreme Court are now leaping at in order to reject more recent tribal claims. I’m thinking of her opinion in Strate, which technically applied only to non-Indian lands on reservation, which Justice Scalia attempted to expand to Indian lands in Hicks; and also now her opinion in Sherrill, which was ostensibly about taxation immunities but now applies broadly (at least in the Second Circuit) to all tribal land claims. Both times she appears to be trying to reel in the Court in applying her dicta in earlier cases, and both times unsuccessfully.

Also, Justice Sotomayor backs up her statement about Indian law being a focus for her.

On Justice Ginsburg’s Admission She Doesn’t Read “Most” Amicus Briefs

Justice Ginsburg admitted earlier this week at a talk at SMU that she doesn’t read most amicus briefs. [A link to an article about her talk is here.] Here is an excerpt of the article reporting on the discussion:

To prepare for oral arguments in all cases, Ginsburg said she reads all the prior opinions and part of the record before opening the lawyers’ briefs. She follows that order so she may spot inaccuracies in the briefs. “Lawyers should know, if they try to distort the record, they will be found out,” she said. Writers of amicus briefs face other concerns: “I have to confess, I don’t read all of those. In fact, I don’t read most of them,” Ginsburg said.

The possibility that Supreme Court Justices don’t read amicus briefs, or only read a few of them, is not new. In fact, the Tribal Supreme Court Project’s greatest successes so far have been  in limiting the number of redundant amicus briefs filed in the Court, and negotiating strategies for targeted, careful amicus briefs.

What is new, a little bit, is the admission from one of the Justices. Our question is this: Will there be an impact on the market for amicus briefs? Right now, just about every Supreme Court practitioner shop in D.C. has clients willing to shell out dough for amicus briefs. Will that market start to dry up, even just a little bit?

Regardless, this information is sobering.

Carole Goldberg on Justice Ginsburg’s Indian Law Decisions

Carole Goldberg published “Finding the Way to Indian Country: Justice Ruth Bader Ginsburg’s Decisions in Indian Law Cases,” in the Ohio State Law Journal.

This, along with Al Ziontz’s recollection of the ACLU‘s split over how to approach Santa Clara Pueblo v. Martinez during then-Professor Ginsburg’s tenure as head of the ACLU’s Women’s Rights Project, is critical reading.

NYTs on Justice Ginsburg’s Participation in the Navajo Nation Oral Argument

From NYTs:

WASHINGTON — Justice Ruth Bader Ginsburg, who underwent surgery for pancreatic cancer less than three weeks ago, was back on the Supreme Court bench on Monday, asking crisp and vigorous questions in the two arguments heard by the court.

Justice Ginsburg seemed to take particular interest in a case brought by the Navajo Nation claiming that the federal government had been complicit in a scheme to allow a private company to underpay for coal on tribal lands.

The case, United States v. Navajo Nation, No. 07-1410, was making its second appearance before the court. Justice Ginsburg wrote the majority opinion ruling against the tribe in 2003, and she asked forceful questions suggesting that she saw no reason to revisit her conclusions.

Carter G. Phillips, the tribe’s lawyer, was just starting his argument when Justice Ginsburg asked the first question. Quoting broad language from her original decision, she suggested that it covered the newer case, too.

“Do you think that was just carelessness on the court’s part?” she asked of the expansive language she had used, including the phrase “any relevant statute or regulation.”

“Oh, I would never assume that, Justice Ginsburg,” Mr. Phillips said in a light tone. Justice Ginsburg reacted with a broad smile.

A few minutes later, she quoted a second passage along similar lines, and Mr. Phillips again deferred to her. “Obviously, Justice Ginsburg, you are in a much better position to judge what was intended here,” he said, before going on to say that this case involved a different federal statute than the 2003 one.

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Jeffrey Rosen on a “Judicial Apocalypse” if McCain Elected

From the New Republic:

During every presidential campaign for the last two decades, liberals have predicted an apocalypse in the Supreme Court. In their dire visions, as many as four justices are always about to retire, meaning that a Republican victory would turn the court radically to the right and lead to the certain overturning of Roe v. Wade.

In each of the past three elections, of course, these hyperbolic predictions have turned out to be wrong. Since 1996, Roe has been supported by a comfortable 6-3 majority, and the Court, controlled by two relatively moderate swing justices, Sandra Day O’Connor and now Anthony Kennedy, has remained fairly centrist. All of this had led some Court-watchers, including me, to conclude that the stakes for the Court in most presidential elections are less dire than many liberals fear.

Not this time. This year, for the first time since the New Deal era, a single election really does have the power to transform the Court–at the very moment that voters, rightly concerned about the tanking economy and the war in Iraq, are looking the other way. Given the fact that the older justices are liberal rather than conservative–and that the oldest, John Paul Stevens, is 88–it’s hard to deny that nominations by John McCain would change the Court far more dramatically than those by Barack Obama. An Obama victory would maintain the current balance of the Court, while a McCain Court could create a solid conservative majority.

What’s at stake is not only Roe v. Wade, but issues directly tied to the current concerns of the public: among them, Congress’s power to regulate the economy as well as limits on the president’s power to act unilaterally in the war on terrorism. Although McCain claims to favor justices who will defer to the political branches, the most likely Republican nominees are hardly consistent advocates of judicial deference. Voters who are hoping McCain will nominate relatively moderate judicial mavericks should think again.

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