Blog Post of the Day — “The Frequent Irrelevancy of the Supreme Court”

Possibly the best blog post this year (so far) comes from Sr. federal trial judge Richard George Koft on his great blog Hercules and the Umpire. It is “The Frequent Irrelevancy of the Supreme Court.” Judge Kopf writes from the POV of a federal trial judge:

A lot of what the Supreme Court does is simply irrelevant to what federal trial judges do on a daily basis.  Take, for example, the Daubert case that was supposed to be a big deal when it came to expert testimony.   Boiled down, Daubert simply said that an expert had to have an adequate foundation for his or her opinion.   Well, . . . sure.   The “field” absorbed Daubert with little or no change in what was actually going on in most federal trial courts.  A similar shrug happened with the “big” pleading case of Bell Atlantic v. Twombly.  Very little, if anything, changed “in the field.”   Prior to Twombly, most of the time, the goofy cases got weeded out.  Same, same after Twombly.

I think the same of is often (maybe not “frequent[ly]” but some of the time) true in Indian law. My vote for most irrelevant Indian law decision of the last ten years is Plains Commerce Bank v. Long Family Land and Cattle Co. The law going in to that case, which involved tribal civil jurisdiction over nonmembers, was that the Montana “exceptions” applied to on-reservation lands owned by non-Indians, and that it was difficult to meet the exceptions. The law after that case? No change whatsoever, with some fairly minor tightening of the second Montana exception where the Chief Justice quoted the Cohen Handbook:

One commentator has noted that “th[e] elevated threshold for application of the second Montana exception suggests that tribal power must be necessary to avert catastrophic consequences.” Cohen §4.02[3][c], at 232, n. 220.

Other than that (which is basically dicta), n0 new law at all. There was no point, other than to throw a bone to a nonmember bank that a tribal jury found to have racially discriminated against tribal members on their commercial loans, a verdict not preserved for review by the bank.

What’s your vote? Comments welcome.

Commentary on Recent CVSGs in Supreme Court Indian Law Cases

A couple years back, we wrote a post about the important of the Solicitor General’s views in Indian law cases (here). I followed that up with a short paper on how it appeared that the OSG’s influence on the Supreme Court — usually very prominent — seemed to wither when the OSG sided with tribal interests in Supreme Court litigation.

In this Term alone, at the invitation of the Supreme Court, the OSG has already filed two invitation briefs (Hogan v. Kaltag and Thunderhorse v. Pierce), and could file two more before the Term ends in the summer (Schwarzeneggar v. Rincon Band and Miccosukee Tribe v. Kraus-Anderson Construction). These invitation briefs are the result of Supreme Court orders inviting the views of the Solicitor General in cases where the U.S. is not a party (called a CVSG — a call for the views of the Solicitor General), but where the federal government may have a special interest or special expertise in a particular issue. The Court has asked for the Solicitor General’s views on an Indian law petition, on average, somewhat less than once per Term.

So the four recent CVSGs are interesting, to say the least.

There are tons of theories as to why the Court might issue a CVSG. For example, a Supreme Court clerk in the cert pool might simply be flummoxed by a question, and recommend a CVSG so as to avoid writing a poor memo; or a Justice or group of Justices might be wary of a grant in a particular case thinking a majority would rule against the Justice’s preference, and so seek a CVSG (a “defensive CVSG,” if you will); or any number of other reasons. It bears note that the OSG has already passed on drafting an amicus brief during the certiorari stage, and so the Court’s issuance of a CVSG is, to some extent, evidence of the Court second-guessing the government’s choice to sit back on a particular case. In Indian law cases, it makes sense to issue the occasional CVSG — the federal government is the trustee of Indian tribes and Indian property, the government has experience and expertise in Indian affairs and litigation involving tribal interests, and Indian law is a uniquely federal question.

So why so many CVSGs this Term (three, and one carried over from last Term)? It could be with the recent turnover in the Court, the new Justices really do need the additional advice from a respected authority (that is, the OSG). Maybe the OSG is writing fewer amicus briefs during the cert stage than before, and so the Court is trying to fill that gap with CVSGs. Maybe there are few Justices that at least superficially support tribal interests, and they are being successful in persuading the rest of the Conference to defer to the OSG through the CVSG process before issuing a grant against tribal interests (“defensive CVSGs”).

One possibility (a total long-shot, I know) is that the Court is gun-shy about granting a cert petition brought by a state or a non-Indian party (but obviously not the United States) because of the Plains Commerce Bank v. Long Family Land and Cattle Co. debacle. I say debacle because I get the sense that the majority of the Supreme Court was surprised by the way the case played out. Going back and reading Plains Commerce Bank’s cert petition, the petitioner fudged the facts a bit in trying to make the tribal court decision look irresponsible to the Court. Instead of a perfect vehicle (that is, set of facts) that would support a resounding decision rejecting tribal court jurisdiction, the Court was faced with a tribal court that allowed and encouraged non-Indians to participate in the jury pool, a non-Indian bank that had been a significant repeat player in tribal court cases, and especially a non-Indian bank well-known for discriminatory lending practices in Indian country. The cert opposition brief apparently didn’t do a good enough job articulating those concerns and others. Chief Justice Roberts still found four reliable conservative votes for his majority opinion, but at great cost, I think, to the Court’s claim to impartiality in Indian law cases.

[If you don’t think the Court looks for a particular set of facts that are strongly anti-tribal before they’ll hear a case, see the cert pool memos in FMC v. Shoshone-Bannock Tribes, where the Court declined to accept a Montana case brought by a non-Indian company (which they later would in Strate v. A-1 Contractors), and American Management and Amusement v. Barona Group, where the Court declined to accept a challenge to tribal claims based on laches (which they later would in Sherrill v. Oneida Indian Nation).]

Now is a critical time for tribal interests. There may soon be a new Solicitor General, and the Court appears to be relying more on the OSG for Indian law advice (the Court accepted the recommendation to deny the petitions as stated in both invitation briefs filed this Term).

None of this has any import when the OSG files cert petitions against tribal interests in cases where it seems unlikely the government would have chosen to do so before the last few years, but that’s the subject of another posting another time.

Plains Commerce Bank v. Long Family Land & Cattle Co. Materials — Additional Update

Here is the entire set of Plains Commerce Bank v. Long Family Land and Cattle Co. materials, with the addition of two tribal court lower court orders:

ETA: Final SCOTUS decision has been added to this post as well.

Tribal Court Denial of Bank’s Motion for Summary Judgment

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Commentary on the Plains Commerce Bank Cert Grant

The Supreme Court’s decision to grant certiorari in Plains Commerce Bank v. Long Family Land & Cattle Co. surprised me a great deal. It proves, I think, that Indian law scholars and practitioners cannot claim to predict how the Supreme Court is going to act (no big surprise there, given how few Indians or Indian lawyers have clerked for the Court), but I also think it shows that the so-called Supreme Court bar can miss one every now and then [SCOTUSBlog’s Petitions to Watch seemed to miss this one].

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