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.