No Brackeen Decision Today

Next opinion release day from the Supreme Court will be June 1.

While not required by law, it is traditional for the Court to release all the opinions for the term by the end of June. No one receives advance notice of when an opinion will be released, no matter what they may say. Even in the extraordinary situation of the Dobbs opinion leak, no one knew when the official opinion would be released.

Kirsten Carlson on the Democratic Difficulties of Castro-Huerta

Kirsten Matoy Carlson has published “The Democratic Difficulties of Oklahoma v. Castro-Huerta” in New Political Science. Here is the abstract:

The Supreme Court, some commentators argue, is at its most undemocratic since the Lochner Era in the 1930s. They point to the Supreme Court’s majority opinion in Dobbs v. Jackson Women’s Health Organization, which departs from public opinion on abortion and longstanding constitutional precedence. Dobbs, however, is not an outlier. The Supreme Court made a similar move in Oklahoma v. Castro-Huerta. The majority opinion questioned almost 200 years of constitutional interpretation and several decades of congressional policy to enable state governments to exercise criminal authority over non-Indians in Indian Country. This article compares the majority opinion in Castro-Huerta to congressional policy to explore the democratic and constitutional difficulties that can arise when the Supreme Court refuses to defer to Congress—the democratically elected and constitutionally appointed institution for making federal Indian policy. It reveals how the Court’s undemocratic turn extends beyond cases involving individual rights.

ABA SEER “Community Conversation” re: Arizona v. Navajo Nation Supreme Court Argument


Title: Arizona v. Navajo Nation, U.S. Supreme Court Oral Argument Debrief

Date/Time: April 20, 2023, 12–1 pm Mountain Time.

Registration link:

Description: Last month, the U.S. Supreme Court held oral arguments in Arizona v. Navajo Nation, a case that pertains to the Navajo Nation’s claims to water rights in the mainstem of the Colorado River and the United States’ trust obligation to assess and assert those rights under the Court’s more-than-century-old Winters doctrine. Although this current case ostensibly relates to one Tribe’s rights to one specific water source, the forthcoming Supreme Court ruling could have ripple effects for Native Nations across the United States as they seek to assert, quantify, and settle their water rights in ongoing adjudications nationwide. Join law professors Heather Whiteman Runs Him (University of Arizona), Derrick Beetso (Arizona State University), and Heather Tanana (University of Utah) for a discussion about the Arizona v. Navajo Nation oral arguments, the potentially wide-ranging implications of the case, and their work on the amicus briefs they coauthored and submitted to the Court, during this free virtual event sponsored by the ABA Section of Environment, Energy, and Resources’ (SEER) Native American Resources Committee and Water Resources Committee.

Sauk-Suiattle v. Seattle Cert Petition


Questions presented:

  1. Is the court-created “futility” doctrine, which allows a United States court to decide a case removed from state court even though it lacks jurisdiction, repugnant to Article III of the Constitution?
  2. Does application of the so-called “futility” doctrine by a United States court to decide a case over which it lacks jurisdiction contravene 28 U.S.C. 1447(c), the plain language of which requires remand of the cause to the state court from which it was removed?
  3. Should the Supreme Court grant certiorari to reconcile a conflict among the circuit courts of appeal regarding the validity of the futility doctrine?

Lower court materials here.