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.

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?