Here is the press release from the University of Hawaii Law School: “UH Law School Graduate Named Law Clerk for U.S. Supreme Court Justice Sonia Sotomayor.”
It’s been a long strange trip but we’re down to the final four.
#1 Alaska Native tribes v. #2 Tribal Sovereign Immunity
Alaska Native tribes win again with 55 percent of the vote over Bay Mills Indian Community. The top overall seed defeated the Buena Vista Rancheria, the Omaha Tribe, and the Wisconsin Oneidas before facing Bay Mills.
Tribal sovereign immunity also advances with 74 percent of the vote over ICWA. Immunity knocked out alternative energy, American Indian education, and VAWA before taking out ICWA.
The matchup looks very similar for the Alaska tribal communities. In effect, Bay Mills gets a second chance at the prize, along with all the other tribes that have raised sovereign immunity this year. Westlaw says there are 16 tribal immunity cases from 2014 alone. Of course, there are 229 Alaska Native tribes.
#2 Justice Sotomayor v. #10 Tribal In-House Counsel Association
Justice Sotomayor wins out in the people bracket, narrowly eliminating Judge Humetewa with 54 percent of the vote. She eliminated the McAllen Grace Baptist Church, Frank Pommersheim, and the authors of Structuring Sovereignty before facing Judge Humetewa.
TICA is the big upstart in this inaugural tournament, winners of the groups bracket but the lowest seed remaining. Obviously, I underestimated their staggering power at the beginning. TICA squeaked by NABA and the Tribal Supreme Court Project before gathering steam and completely destroying the Carcieri challengers and the 1491s.
Hmm, this semifinal features one versus many, begging us to ask Spock’s stark question — do the needs of the many outweigh the needs of the few, or the one?
Here are the category finals in all four categories:
Category 1 — Indian nations
#1 Alaska Native tribes v. #3 Bay Mills Indian Community
Alaska Native tribes knock off the Wisconsin Oneidas, who made a very good showing against the northwest leviathan, but Alaska wins 68 percent. And, yes, there is internet in the UP, or there are just plenty of downstaters (hearing me Port Huron?) banking on the BMIC casino? The Gun Lakers only garner 41 percent of the vote.
So the two big tribal winners of the year face off.
Category 2 — Laws, Doctrines, and other stuff
#1 ICWA v. #2 Tribal sovereign immunity
The Indian Child Welfare Act motors on with 64 percent of the vote over intra-tribal disputes. I think we’re all in denial. Too bad, too, cuz tribal sovereign immunity, one of the reasons we have such compelling intra-tribal disputes, also moved on, defeating VAWA narrowly with 54 percent of the vote.
Oil and water face off. We at Turtle Talk know for a fact that ICWA and tribal immunity cases absolutely dominate the federal and state cases we see almost every day here. You can make your living on these two, so long as you’re willing to work for next-to-nothing as an ICWA attorney and so long as you don’t try to make a living suing Indian tribes.
Category 3 — People and Parties
#1 Hon. Diane Humetewa v. #2 Justice Sotomoyor
Sarah Deer gave her a serious run for her money, but fell by a mere two percentage points in the most highly contested (the most votes that is) pairing of the third round. Judge Hemetewa prevails again but only to face the most recognizable and fabulous Supreme Court Justice in history. Yes, I said that.
Category 4 — Other things
#1 1491s v. #10 Tribal In-House Counsel Association
The 1491s sneak past the Cohen Handbookies with 54 percent of the vote. Did I call it or what? All four top seeds are in the final eight. They appear to be in serious trouble though as the Tribal In-House Counsel Association is gaining unbelievable momentum, absolutely crushing the Carcieri beneficiaries with 78 percent of the vote. Of course, that might merely be a question of popularity because who likes those guys anyway? TICA’s going to have to rely more on beneficence to defeat the staggering monolith that is the 1491s.
Now for the other half of the bracket.
Category 3 — People and Parties
Notably, this is an all-woman category semifinal. Damn right.
#1 Hon. Diane Humetewa v. #4 Sarah Deer
Judge Humetewa knocks off Bill Wood with 74 percent of the vote. Bill.I.Am’s Backers made it closer than I predicted. Sarah Deer keeps rolling, taking down the assistant secretary with 62 percent of the vote.
#2 Justice Sonia Sotomayor v. #11 Structuring Sovereignty
Justice Sotomayor wins the battle of New York City with 69 percent of the vote. The Structuring Sovereignty team keeps rolling with 58 percent of the vote.
Category 4 — Other
#1 1491s v. #5 Cohen Handbook
It appears the number of people who reject NFL racism outnumbers the Cobell class pool; I’d say we have a victory of humor over angst. And it wasn’t close, as the 1491s win 61 percent of the vote.
In the other matchup, Cohen outran Ma’iingan, which is saying something.
This semifinal reminds me of the theme song to Pinky and the Brain — one is a genius, the other’s insane. But which is which?
#10 Tribal In-House Counsel Assn. v. #6 Carcieri Challengers
In a massive upset, upstart TICA knocks of the Supreme Court project with 65 percent of the vote. No, I’m serious.
This sets up a huge round-of-16 matchup between TICA and the Carcieri beneficiaries In other words, will principle defeat market share?
Now we move on to the quarterfinals of Category 3, People and Parties.
#1 Hon. Diane Humetewa v. #8 Bill Wood
Hun, Judge Humetewa only won 89 percent of votes. Has she already presided over the criminal cases of 11 percent of TT readers and their friends and families? 🙂
I think Professor Wood’s in for a rough quarterfinal. Sorry brother. But you beat Dollar General, getting nearly two-thirds of the vote!
#4 Sarah Deer v. #5 Hon. Kevin Washburn
In a battle of two geniuses, Prof. Deer prevails with 70 percent of the vote. In the battle of two feds, the assistant secretary prevails with 71 percent. This next round is going to be a clash of titans.
#2 Justice Sonia Sotomayor v. #10 Frank Pommersheim
We believe that, based on the fact that Justice Sotomayor only won 90 percent of the vote, our alum J.S. voted at least five times. 🙂
Justice Sotomayor will face Frank Pommersheim, who narrowly defeated Judge Canby, who did not, as far as I know, get much of the haiku vote, with 55 percent of the vote.
This sets up my favorite match-up — a tale of two New Yorkers! Erin Lane, where are you?
#3 Hon. Keith Harper v. #11 Structuring Sovereignty
Ambassador Harper won easily over Chris Deschene, with 69 percent of the vote. The win of the authors of Structuring Sovereignty by a 71 percent to 29 percent vote was somewhat surprising (to me anyway). I guess it’s too late to Bear Down, Arizona.
Second part of the third category, people and parties.
# 2 Justice Sonia Sotomayor
# 15 McAllen Grace Brethren Church
Won Fifth Circuit case, along with Lipan Apache members, which held that the Eagle Act regs might violate RFRA.
# 7 Hon. William Canby
# 10 Frank Pommersheim
# 3 Hon. Keith Harper
# 14 Chris Deschene
# 6 Robert A. Williams, Jr.
Probably should get his own category that we could parse out through the years, but this year was on Moyers. Force of nature.
# 11 Dean Stacy Leeds and Prof. Angelique EagleWoman
Yeah, time passes quicker than I thought. Turns out their great book, “Mastering American Indian Law,” was a 2013 masterpiece. Ok.
The real # 11 — Authors of “Structuring Sovereignty”
My favorite book of 2014, Structuring Sovereignty is a wonderful scholarly survey of modern tribal constitutions. Melissa Tatum, Miriam Jorgensen, Mary Guss, and Sarah Deer (a second appearance in the game).
Here is Tony Mauro’s “Arm in a Cast, Sotomayor Tours Oklahoma and Meets Tribal Leaders.”
At an appearance on Sept. 11, Oklahoma City University president Robert Henry—formerly chief judge of the Tenth Circuit—asked Sotomayor to discuss her meeting earlier that day with “some of our native people.” Henry said, “I so much appreciated” that she met with tribal members. Neither Henry nor Sotomayor gave details about where the meeting took place or how it was arranged.
Sotomayor heard about broken agreements between tribes and the U.S. government. “There are so many misunderstandings about Native Americans,” she said, producing resentments that “run deep… It still stings.” She added, “There is a basis for that feeling.”
The Oklahoma tribes, she said, are “all displaced tribes—all wrenched from their homes in different states” and sent to Oklahoma in the “Trail of Tears,” an exodus in the 1830s in which Supreme Court rulings played a part.
Sotomayor also said the public has a misperception that tribes are rich because of the advent of casinos at many reservations. That is not the case, she said. “They have problems like the larger society,” she asserted, including obesity and diabetes. Sotomayor noted she has diabetes herself.
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.
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.