Montana Native Law Student Recalls Babbitt v. Youpee and Meeting Justice Scalia

April Youpee-Roll has published “Just making it up — On Justice Scalia, Indian law and the Supreme Court’s future” in the Missoula Independent. Great stuff.

An excerpt:

Justice Scalia, who died last weekend, was kind, funny and met the audience’s questions with patience and enthusiasm. (Most of them were about raising his nine children, but a couple touched on his trademark constitutional originalism.) At the end, the organizers of the event sold copies of his book and Justice Scalia graciously signed them. I bought one as a gift for my mother and took a moment to gather myself while I waited in line, wondering what exactly one says to a Supreme Court justice.

As I handed over my book, I decided to go with, “I just wanted to thank you. When I was 10, I came to watch oral arguments in my family’s case, and you joined the majority in our favor.”

Justice Scalia looked up at me and smiled, “What was the case?”

“Babbitt v. Youpee. It was in 1997.”

He paused and I prepared to be ushered along in line. “That was a takings case, right?”

I nodded, more than a little surprised at his memory.

He signed my book, and as he handed it back to me, he said something I’ll never forget: “You know, when it comes to Indian law, most of the time we’re just making it up.”

Addendum to Justice Scalia’s Record

Update to Justice Scalia post….

We now have a link to the Charlie Rose show where Justice Scalia made a statement about his vote in the Holyfield matter — it starts at about 34:20 into the show, or at about 19:20 remaining. NYTs coverage here. Yes, he absolutely got the facts wrong….

Also, and I regret forgetting this, see below Justice Scalia’s internal memorandum to Justice Brennan in the Duro v. Reina deliberations, uncovered by David Getches in Justice Marshall’s papers (if I recall correctly):


And we conclude with a pic of the Justice as Grand Marshal of the Columbus Day parade in NYC about 10 years ago — the title of the NYTs article was “Who’s That Guy? Without Robes, Grand Marshal Is Mystery“:


Scalia Grand Marshal


Justice Scalia’s Indian Law Record

Justice Scalia’s death allows us to reflect on his Indian law record. If you were an Indian person or an Indian tribe as a party in a Supreme Court matter, it was very unlikely you would have his vote, although he did on occasion surprise.

Overall, during Justice Scalia’s tenure on the Supreme Court (his first case was Iowa Mutual), tribal interests prevailed in 21.4 percent — 12 wins, 44 losses, and 8 split decisions or no decisions. Justice Scalia voted in favor of tribal interests 16.2 percent of the time — I count 8 1/2 votes in favor, and 52 1/2 votes against.

Justice Scalia authored five majority opinions — all of them defeats for tribal interests — and he wrote three dissenting opinions — two of them favoring tribal interests.

Majority Opinions

Justice Scalia’s most important purely Indian law opinion was the opinion for the Court in Nevada v. Hicks. There, the Court held that tribal courts cannot entertain federal civil rights suits against state officials. Scalia’s opinion also purported to extend the Montana analysis onto tribal trust lands, and recognized the authority of state officers to investigate violations of state law on tribal trust lands, neither of which, in my view was necessary to deciding the question.

Justice Scalia’s most important opinion with an Indian law element was the opinion for the Court in Employment Division v. Smith. There, the Court held that a nondiscriminatory state law that burdened religious exercise was constitutional under the First Amendment, abrogating precedents that applied a strict scrutiny analysis to such burdens in favor of a rational basis standard. Congress would attempt to undo that decision in the Religious Freedom Restoration Act.

The next most critical opinion authored by Justice Scalia was Blatchford v. Native Village of Venetie. There, the Court held that the Eleventh Amendment barred Indian tribes from suing states. The case was antecedent to the Court’s earth-shattering Eleventh Amendment decision in Seminole Tribe in 1996.

Justice Scalia wrote the majority opinion in County of Yakima v. Yakima Indian Nation, a case holding that the General Allotment Act effectively authorized states to tax allotted fee lands. Finally, Justice Scalia wrote the majority opinion in United States v. Navajo Nation II, where the Court again rejected a trust breach claim by the tribe arising from the Peaboady Coal-Interior Secretary Hodel ex parte communication.

Dissenting Opinions

Justice Scalia also wrote three short dissenting opinions, at least one of which was a vote in favor of tribal interests that may have surprised observers.. In South Florida Water Management Dist. v. Miccosukee Tribe of Indians, a Clean Water Act case with minimal Indian law questions, he filed a brief dissent objecting to the majority’s analysis, and would have affirmed the lower court. In Adoptive Couple v. Baby Girl, he dissented separately to state he would have recognized the birth father’s rights. In Michigan v. Bay Mills, he joined the primary dissent and wrote separately to acknowledge that he had changed his position supporting tribal sovereign immunity in Kiowa Tribe.

Other Comments

We’ve heard many times over the years that Justice Scalia spoke about Miss. Band of Choctaw Indians v. Holyfield as a vote he most regretted (he voted for the tribe) but felt forced to because of the clarity of the statute. If anyone has video of his comments, please send it along.

For those of you wondering, Justice Scalia voted for tribal interests in Holyfield, Potawatomi (presumably on the immunity issue alone), Sac and Fox (Bill Rice’s case), KiowaArizona v. California (2000), S. Fla. Water Management Dist., Cherokee Nation v. LeavittSalazar v. Ramah, and Adoptive Couple.


On Justice Sotomayor’s Judicial Philosophy

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.

– See more at:

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.

Scalia Memorandum to Brennan in Duro v. Reina

In the spirit of posting old documents (see our Nixon post yesterday), we are delighted to present a find from the late David Getches’ papers (many, many thanks to Jane at the Colorado Law Library for hunting for this and sending it along!):


Here is an image of the memo, which David made a centerpiece of his deeply influential California Law Review article, “Conquering the Cultural Frontier: The New Subjectivism of the Supreme Court in Indian Law .” Jane believes David or his RA made the marks on the memo.

Justice Scalia Under Fire for Being Too Partisan on the Bench; What’s the Big Deal?

Here, via How Appealing.

Some of the criticism comes from Charles Fried, former SG under Reagan:

Scalia’s tone this year, particularly in cases involving the Obama administration, is raising new criticism over the temperament of a justice who has always relished the give-and- take of the Supreme Court’s public sessions. Some lawyers say Scalia, a 1986 appointee of Republican PresidentRonald Reagan, is crossing the line that separates tough scrutiny from advocacy.

“His questions have been increasingly confrontational,” saidCharles Fried, a Harvard Law School professor who served as Reagan’s top Supreme Court advocate. While the justice has always asked “pointed” questions, in the health-care case “he came across much more like an advocate.”

I know I’ve mentioned Justice Scalia’s use of advocates to state his position (sometimes in a less than successful way), but it seems to me there’s nothing that says he can’t do whatever he wants on the bench (short of outright abuse or something).  I bet many (most?) advocates think Justice Scalia’s open and direct questioning is helpful in that it may draw out some of the other Justices’ views and allow for greater engagement with the Justices in the middle on a particular issue. It’s certainly a lot more helpful to the advocates than Justice Thomas’ remarkable swell of silence.

NYTs: Rosen on Scalia and Originalism

An excerpt from the NYTs:

“If you took the originalists at their word,” said David Strauss, a liberal University of Chicago law professor, “you could punish people for criticizing the government, the federal government could discriminate against anyone it wanted to, and there’s a real argument that the interstate highway system is unconstitutional. The federal prison system and criminal law would be in serious question, and forget the Federal Reserve. It would be gone.”

In the end, however, many liberal scholars believe that if the court took seriously the text and history of the entire Constitution — including the 16th Amendment, authorizing the income tax, and the 19th Amendment, which gave women the right to vote — then originalism should just as often lead to liberal as conservative results.

On issues like campaign finance, health care, financial reform and gender discrimination, these scholars say, taking the 20th-century amendments as seriously as those passed in the 18th and 19th centuries would guarantee a constitutional originalism that upheld modern visions of liberty and equality.

“I hope Scalia and Thomas succeed in making their colleagues care more about text and history,” said Douglas Kendall, the president of the Constitutional Accountability Center, which argues that originalism can favor progressive causes. “But if they’re honest in reading and considering these sources, it won’t always yield the results the Tea Party wants.”