Justice Scalia

Onion: Supreme Court Understudy Fills in for Scalia

Matthew L.M. Fletcher

From the Onion:

WASHINGTON—After waiting in the wings of the U.S. Supreme Court for three long years, understudy Albert Dorchester, 28, finally got a chance to fill in for Justice Antonin Scalia Tuesday when a sudden illness kept the veteran jurist from his usual duties. “This could be my big break,” said Dorchester, who since 2007 has studied every nuance of Scalia’s diction and mannerisms, as well as his trademark textualist jurisprudence. “I just wanted to get out there, let my talents shine, and show that I, too, can be a constitutional originalist and claim strict adherence to the intent of those who framed our nation’s founding document, thereby advancing a conservative agenda. Pretty sure I nailed it, too.” Dorchester added that he hoped the rumors that there was a president in the audience were true.

The Relative Invisibility of the Supreme Court’s Record on Indian Law

Matthew L.M. Fletcher6 Comments

The Constitutional Accountability Center issued a report (here is the press release, and here is the report) suggesting that the Roberts Court has dramatically altered the outcomes of corporate and business interests in the Supreme Court. The press release notes: “We found that (1) the U.S. Chamber of Commerce won 68% of the cases in which it had participated since Justice Samuel Alito joined the Court in January 2006….” Compare that to the five years preceding Justice Scalia’s appointment to the Court: “During this earlier five-year period, the Chamber lost more cases than it won (winning 15 of 35 cases, a win percentage of 43%) and there was no similar division along ideological blocs on the Court in business cases.”

Seems like a big deal, but the stats in Indian law blow that away (of course, there are far few cases).

In the last five Terms of the Supreme Court, tribal interests have won zero cases, out of just three (at least two more on are on the way this Term). But since Justice Scalia joined the Court, tribal interests have won 14 out of 51 cases, a “win” percentage of 27%.

From the beginning of the modern era of Indian law (1959) until Justice Scalia joined the bench, tribal interests “won” 47 out of 80 cases, for a “win” rate of 59%. Seems like tribal interests are feeling a much bigger negative impact than business interests are feeling a positive impact.

We think this goes to a greater invisibility of American Indian law, Indian tribes, and Indian people, present in most aspects of law and policy. What’s changed? Are Indian tribes suddenly less competent to govern? Hardly, and in fact they are stronger than since before the Founding of the United States. Indian law profs have been decrying the rise of open and notorious judicial policymaking in Indian law for two decades, apparently to little effect or interest in the mainstream.

Legal Times Coverage of the Plains Commerce Bank Argument

Matthew L.M. Fletcher

From the Legal Times (H/T Indianz):

The first Supreme Court oral argument Monday morning was all about Native American law and the jurisdiction of tribal courts. But Chief Justice John Roberts Jr. took the debate in an unexpected direction — across the Atlantic to southern Europe.

The issue in Plains Commerce Bank v. Long Family Land & Cattle was whether tribal courts have jurisdiction over a dispute between a nontribal bank and a company that is majority Indian-owned. More than 51 percent of the owners of the South Dakota ranching company in the case are members of the Cheyenne River Sioux Tribe, and, as such, the company was entitled to loan guarantees from the Bureau of Indian Affairs.

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Lost “Indian Law” Article by Justice Scalia

Matthew L.M. Fletcher

Kate Fort dug this up — it’s a Michigan Law Review article from then-Professor Scalia on federal sovereign immunity in the context of public lands cases, pre-APA. Most of the cases he discusses involving Indian lands. His aversion to federal common law is apparent at the end of the article.

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Stanley Fish on Religious Freedom

Matthew L.M. Fletcher

Stanley Fish, as always, has something interesting to say about the law. In this post (“Monkey Business“) on his NYT’s blog, “Think Again,” Fish describes a case in federal court (S.D. N.Y.) about a claim that the importation of “bushmeat” for religious purposes that otherwise would violate the Convention on International Trade of Endangered Species.

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

Matthew L.M. Fletcher

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.