Supreme Court

Initial Commentary on Salazar/Gun Lake v. Patchak

Matthew L.M. Fletcher8 Comments

We posted the transcript here.

* The first remarkable point about today’s argument is that Justice Scalia appeared to come to the rescue of counsel for Patchak four times , and by the end of Respondent’s time was virtually arguing the case against the government and tribe through counsel. Page 50, line 23 to page 51, line 8, Justice Scalia answers questions from Justices Kagan and Sotomayor on behalf of counsel. On page 52, line 11 to page 53, line 6, Scalia literally concludes counsel’s argument on his behalf, offering two questions that counsel needs only say “yes” to.

The first instances Justice Scalia offers help to Patchak’s counsel are page 34, lines 9 through 20, which ends with Scalia telling counsel he’s supposed to say “yes, sir” to his question and which also ends with laughter from the gallery (presumably the clerks); and on page 39, line 13 though page 40, line 4 (also ending in laughter as Patchak’s counsel agrees with Justice Scalia).

* Justice Scalia comments early on in the government’s time: “whether this land could be used for what you call gaming and I call gambling.” There’s a longstanding rhetorical distinction between those who support tribal gaming/gambling — opponents call it “gambling” and supporters call it “gaming.” Justice Scalia tips his hand, no doubt intentionally.

* In light of our post from earlier today, there were 60 questions for the government and the tribe, and 49 for Patchak.

* A recurring theme in the argument, starting with the opening question from Justice Sotomayor, was that Patchak could have sued under NEPA, other statutes, or federal regs (within 30 days) to challenge the trust acquisition before the land goes into trust, as MIchGO did. The possible weakness is that the government’s position seems to be it can take land into trust at any time to foreclose any challenges to the trust acquisition by slipping behind the immunity barrier in the QTA. If the government did this, then the due process/non delegation problems identified in the 1995 South Dakota v. US decision comes to light. It seems to me that the relatively easy answer is that the due process/non delegation claim is available to challengers if the government did act in this manner, and since it didn’t here, there’s no issue. Of course, the Court would have to trust the Secretary of Interior, which historically, it doesn’t really do.

Update: Even local television (Wood TV, notoriously anti-Gun Lake) conceded that the Justices generally seemed hostile to Patchak’s claims.

SCT Oral Argument Study: Who Gets the Most Questions, Loses?

Matthew L.M. Fletcher2 Comments

Chief Justice Roberts once said his goal as an oral advocate was to get the Court to ask his side the fewest questions. Presumably, the more questions a side gets from the Justices is an indicator of the weakness of that side’s position.  Does that dictum play out in the Roberts Court’s Indian law cases? Note that tribal interests have yet to prevail in the Roberts Court.

The answer appears to be yes.; the one exception being United States v. Tohono O’odham Nation, in which the questions were evenly distributed.  The questions were even in last week’s Ramah argument as well, suggesting a close case.

The average number of questions asked of the tribal interests — 399 questions/7 arguments = 57 questions

The average number of questions asked of advocates opposing tribal interests — 288/7 = 41 questions

Here is the list: Continue reading →

SCOTUSBlog Preview of Salazar/Gun Lake Band v. Patchak Argument

Matthew L.M. Fletcher

Here.

An excerpt:

One might think that this is not the stuff of an historic oral argument.  But this will be the thirty-first oral argument before the Court for Patricia Millett, who represents the Tribe, which will make her the woman with the most Supreme Court oral arguments in history.

Congrats to Pattie!!!!

Lyle Dennison (SCOTUSblog) Commentary on Ramah Argument

Matthew L.M. Fletcher

Here.

An excerpt:

No one suggested during a Supreme Court hearing that Congress had done a dumb thing in the way it has treated Indian tribes as partners (the most critical comment was that Congress had acted in a “schizophrenic” way), but sheer irrationality was what seemed to be troubling the Justices. On the one hand, Congress told the government it had to accept every contract offered by an Indian tribe to provide government services.  But, on the other hand, it said every year that the government could not pay for everything it got in return.   On Wednesday, the Court was trying to figure out what to do about that — other than simply handing the problem back to Congress (an option that did get discussed). The argument came in the case of Salazar v. Ramah Navajo Chapter, et al. (docket 11-551)

Initial Commentary on Ramah Oral Argument

Matthew L.M. Fletcher1 Comment

A few quick comments about today’s argument. Know that I’m reading a cold transcript. All the “laughter” indicators suggest today’s argument was a jolly one.

Justices Sotomayor, Ginsburg, and Kagan asked the majority of questions, and their questions suggested some sympathy with the tribal position. Chief Justice Roberts, and Justices Kennedy, Scalia, and Breyer participated as well. Justices Alito and, as is his custom, Thomas asked no questions. If the questions were any indicator, I’d say there may be no more than three votes for the tribal position.

This is a complex, technical question that I find difficult to sort out. On one hand, the tribal interests wish to access Congress’s judgment fund in cases where a self-determination act contract is breached in that Congress has not appropriated enough funds to cover the costs of the contract. If there were a trial, tribal interests hope to prove that the Department of Interior’s practice of allocating these costs to individual tribes is arbitrary and capricious, but they cannot do that since this case comes to the Court on summary judgment.

On the other hand, the government reads the appropriations cap as an absolute bar to accessing the judgment fund, and moreover that this isn’t a contract breach case at all. The government’s briefing suggests a constitutional bar, but that question never seemed to have much salience on the argument.

Justice Scalia’s questioning suggested that a Congressional spending cap is absolute, and controls the outcome. If so, then the contract breach theory probably dissolves, and the access to the judgment fund goes with it. There may be some play in how the government allocates the money under the spending cap, but that will just put tribes against each other and the Department of Interior.

The tribal interests face a plain language problem, and Carter Phillips effort to rely on the Redbook promulgated by the Comptroller that basically says, “Don’t worry, federal contractors, everyone’s going to get paid even with a spending cap,” seemed to fall flat. Indian tribes as contractors are different because the government cannot cancel those contracts (and the history of tribal-federal relations that informs this arrangement is irrelevant to the Court).

I find it interesting and a bit unfortunate that the government and a majority(?) of the Court are willing to apply rules that are detrimental to Indian tribes because of their unique status and that of the statutory framework that applies to them. Justice Sotomayor’s questions suggest she shares that concern. I do not believe that special rules unique to tribal interests that benefit those tribes would withstand scrutiny by the Court, although we haven’t seen anything like that reach the Court lately.

Supreme Court Oral Argument Transcript in Salazar v. Ramah

Matthew L.M. Fletcher

Here.

Federal Government Reply Brief in Salazar v. Patchak

Matthew L.M. Fletcher

Here:

11-247rbUS

Gun Lake Band Reply Brief in Patchak

Matthew L.M. Fletcher

Here:

11-246 & 11-247 rb

Supreme Court Denies Cert in Beaulieu v. Minnesota

Matthew L.M. Fletcher

Here is today’s order list.

 

SCOTUSBlog (Lyle Dennison) Preview of Salazar v. Ramah

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

Going into the oral argument, the tribes may well have at least a small advantage in that their argument amounts to three simple propositions: what is at stake is a matter of simple fairness in living up to one’s promises, the government’s ineptness in managing its money deserves no sympathy, and both antique and recent precedent clearly control the outcome. That may stack up well against the government’s rather complex effort to draw a clear distinction between the Cherokee Nation precedent and this new case, its fairly dismissive treatment of the Judgment Fund as a source of funds for the tribes’ claims, and its studied effort to treat the old 1892 precedent in the Ferris case as a matter deserving of little notice and not much argument.

The Court is often seen as quite sympathetic to the plight of Indian tribes, and that can add an emotional factor to any case involving tribal rights. But here, the tribes’ usual, quite zealous protectors — the Interior Department and its Bureau of Indian Affairs — are on the other side, and they are making an argument that their overall obligations to care for the tribes’ interests should not be sacrificed to a legal duty to pay for administrative costs, especially in the face of Congress’s continuing skepticism about those costs.

If the Court is drawn mainly to the constitutional issue that the government has sought to make so prominent, that could work to the government’s considerable advantage. Congress since 1994 has left no doubt that it intended to curb what the Interior Department could spend on a very specific item, and that is difficult to argue around. If the Court is sensitive to separation of powers concerns in this case, and it presumably is always sensitive to that core constitutional concept, it may not want to be seen as second-guessing the lawmakers’ primacy in overseeing the federal Treasury. In this respect, the tribes’ effort to play down the significance of the language used to impose spending caps appeared to be a bit strained.

The tribes’ reliance on the Cherokee Nation precedent has some surface appeal, but, on closer examination, it does not seem to be as clear cut as the tribes would prefer. The lower courts have not been of one mind on its impact, and that no doubt will be noticed by the Justices.