Supreme Court

First Addendum to Supreme Court Citations to Indian Law Scholarship: Treatises and Casebooks

Matthew L.M. Fletcher1 Comment

You’ve seen the list of most-cited scholarship. Here are more detailed lists. This one lists the legal authority, followed by the list of cases/opinions that cite the authority.

Cohen 2005

* United States v. Jicarilla Apache Nation, 131 S. Ct. 2313 (2011) – 6 times by majority (Alito); 4 times by Sotomayor dissent

* Carcieri v. Salazar, 555 U.S. 379 (2009) – 1 time (Stevens dissent)

Cohen 1982

* City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) – 1 time in majority (Ginsburg)

* United States v. Lara, 541 U.S. 193 (2004) – 5 times by majority (Breyer)

* Nevada v. Hicks, 533 U.S. 353 (2001) – 3 times by Souter concurrence

* Idaho v. United States, 533 U.S. 262 (2001) – 1 time by majority (Souter)

* Dept. of Interior v. Klamath Water Users Protective Assn., 532 U.S. 1 (2001) – 1 time by majority (Souter)

* Rice v. Cayetano, 528 U.S. 495 (2000) – 1 time by Stevens dissent

* Cass County v. Leech Lake Band of Chippewa Indians, 524 U.S. 103 (1998) – 1 time by majority (Thomas)

* Babbitt v. Youpee, 519 U.S. 234 (1998) – 2 times by majority (Ginsburg)

* Hagen v. Utah, 510 U.S. 399 (1994) – 1 time by majority (SOC); 2 times by dissent (Blackmun)

* Oklahoma Tax Commission v. Sac and Fox Nation, 508 U.S. 114 (1993) – 1 time in majority (SOC)

* Negonsott v. Samuels, 507 U.S. 99 (1993) – 1 time in majority (Rehnquist)

* County of Yakima v. Confederated Tribes and Bands of the Yakima Indian Nation, 502 U.S. 251 (1992) – 3 times by majority (Scalia); 2 times by dissent (Blackmun)

* Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) – 1 time in dissent (Blackmum)

* Duro v. Reina, 495 U.S. 676 (1990) – 5 times by majority (Kennedy)

* Brendale v. Confederated Tribes and Bands of Yakima Indian Nation, 494 U.S. 408 (1989) – 3 times by Stevens; 1 time by Blackmun

* Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989) – 1 time by dissent (Blackmun)

* Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) – 1 time in majority (Brennan)

* Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987) – 1 time by majority (White)

* Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9 (1987) – 1 time by majority (Marshall)

* Three Affiliated Tribes v. Wold, 476 U.S. 877 (1986) – 2 times by majority (SOC)

* United States v. Mottaz, 476 U.S. 834 (1986) – 1 time by majority (Blackmun)

* United States v. Dion, 476 U.S. 734 (1986) – 4 times by majority (Marshall)

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 2 times by dissent (Blackmun)

* Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985) – 8 times by dissent (Brennan)

* National Farmers Union v. Crow, 471 U.S. 845 (1985) – 2 times by majority (Stevens)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 2 times by majority (Powell)

* National Farmers Union v. Crow Tribe, 468 U.S. 1315 (1984) – 1 time by majority (Rehnquist)

* Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984) – 2 times by majority (Blackmun)

* Solem v. Bartlett, 465 U.S. 463 (1984) – 1 time by majority (Marshall)

* Rice v. Rehner, 463 U.S. 713 (1983) – 2 times by majority (SOC); 4 times by dissent (Blackmun)

* Arizona v. California, 460 U.S. 604 (1983) – 2 times by dissent (Brennan)

Continue reading →

Supreme Court Citations to Indian Law Scholarship

Matthew L.M. Fletcher7 Comments

In light of recent commentaries about the value (or lack thereof) of legal scholarship (here) and new scholarship about the frequency the Supreme Court Justices cite to legal scholarship (it’s rather a lot), we thought it would be fun to list some findings about the Supreme Court’s citations of Indian law scholarship going back to 1959.

We’ll look later at the frequency of citations overall in later work.

Treatises and Casebooks

First, let’s get the Cohen Handbook out of the way. We have a liberal definition of legal scholarship (no pun intended). The numbers in parentheses are number of cases, and number of citations):

Cohen 2005 — 2 cases, 11 citations [U.S. v Jicarilla Apache had 10 cites alone — guess the Court is finally reading the thing]

Cohen 1982 — 31, 72

Cohen 1958 [actually, Dept. of Interior rewrite] — 20, 40

Cohen 1940/1940/1942/1945 — 15, 29

Overall, the Handbook of Federal Indian Law in all its incarnations has been cited in 68 cases, for a total of 152 citations.

Law and the American Indian/American Indian Law

Price, 1973 edition — 3 cases, 4 citations

Price & Clinton, 1983 edition — 1 case, 1 cite

Clinton, Newton, and Price, 1991 edition — 1 case, 1 cite

Getches, Wilkinson, and Williams on Federal Indian Law — 1 case, 1 cite

Canby Nutshell — 1998 edition — 1 case, 1 cite

Mills, Oklahoma Indian Land Laws (1924) — 1 case, 1 cite

Law Review Article/Book Authors

Leading Repeat Players: There aren’t very many of these. Most articles or books cited are one and done. Here are the top repeat players,  their articles, and the opinions that cite them:

Continue reading →

News Coverage of Gun Lake Band/USA Intent to File Cert Petition in Patchak

Matthew L.M. Fletcher

From Indianz.

Here is the link to our post on the D.C. panel opinion.

And to Patricia Millett’s commentary on the decision.

 

Cert Stage Reply Briefs in United States v. New York & Oneida Indian Nation v. Oneida County

Matthew L.M. Fletcher

Here:

United States Cert Stage Reply Brief

OIN Reply Cert Stage

Top 25 Most-Used and Most Cited Indian Law Supreme Court Cases

Matthew L.M. Fletcher

Everyone loves a ranking. Once again, using Westlaw’s database, and their “most-used” and “most-cited” categories, here are the top 25 cited/used U.S. Supreme Court decisions in Indian law:

Most-Cited

  1. (18,133) Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)
  2. (6517) Affiliated Ute Citizens v. United States, 406 U.S. 128 (1972)
  3. (6047) United States v. Mitchell, 445 U.S. 535 (1980)
  4. (5612) United States v. Mitchell, 463 U.S. 206 (1983)
  5. (5361) Morton v. Mancari, 417 U.S. 535 (1974)
  6. (4480) Arizona v. California, 460 U.S. 605 (1983)
  7. (4369) Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)
  8. (4023) Worcester v. Georgia, 31 U.S. 515 (1831)
  9. (3768) Morton v. Ruiz, 415 U.S. 199 (1974)
  10. (3268) Montana v. United States, 450 U.S. 544 (1981) Continue reading →

Grant Christensen on Individual Justice Voting Patterns in Indian Law Cases

Matthew L.M. Fletcher

Grant Christensen has posted his wonderful paper, “Judging Indian Law: What Factors Influence Individual Justice’s Votes on Indian Law in the Modern Era,” forthcoming in the University of Toledo Law Review, on SSRN.

Here is the abstract:

Scholars of the Supreme Court often use a justice’s political ideology to predict their ultimate vote on Constitutional questions. While this approach may serve scholars well when questions involve hot button civil liberties issues that are the focus of confirmation hearings, ideology is in actuality a poor predictor of judicial behavior in other areas of law. This paper looks at one of the more complex – Federal Indian Law – and uses both descriptive statistics and more advanced quantitative analysis to go beyond the pure ideology and explain why individual Justices vote the way they do. Using the Fisher Exact Test, and a comprehensive new database of Indian Law decisions, I demonstrate that contrary to common expectations, factors like the Solicitor General’s participation are not significant in swaying an individual Justice’s vote, while factors like being the appellant party and certified questions of conflicting jurisdiction do statistically significantly alter an individual Justice’s vote on the merits. These factors provide better insight into the ultimate outcome – at a Justice level – of Indian law decisions before the Court, and can be used by parties to predict future Supreme Court outcomes on Indian law questions.

I had a chance to read an earlier version of this paper. Prof. Christensen expands upon a magical science — predicting Supreme Court Justice voting patterns — that has typically been dominated by discussions about ideology. He rightfully tries to move away from that limited view of judicial voting patterns. And as any observer of Indian law knows, ideology breaks down significantly in Indian law cases. Thoughtful, rigorous work.

Cert Opposition Brief in U.S. v. New York and Oneida v. Oneida County

Matthew L.M. Fletcher

Here:

US v NY — Cert Opp

Gila River Indian Community v. Lyon Cert Petition

Matthew L.M. Fletcher2 Comments

Here:

Gila River v Lyon Cert Petition

Here are the questions presented:

I. Whether, under Federal Rule of Civil Procedure 19(b), courts may adjudicate and compromise legal rights in land to which the United States holds title without the United States’ participation in the litigation.
II. Whether, in light of this Court’s recent decision in United States v. Jicarilla Apache Nation, No. 10-382 (June 13, 2011), the Ninth Circuit properly held, as a matter of law, that litigation compromising the United States’ title in land can proceed in the United States’ absence as long as an Indian tribe is a party to the litigation.

Cert Petition in Arctic Slope v. Sebelius (II)

Matthew L.M. Fletcher6 Comments

It will be interesting to see what the OSG does with this. The last time a circuit split developed in similar circumstances, the government brought a cert petition and essentially concurred with the tribal cert petition (Cherokee Nation v. Leavitt).

Here are the materials:

Arctic Slope 2 Pet (2011)

Arctic Slope II Pet Appendix

Here is the question presented:

Whether the Federal Circuit erred in holding, in direct conflict with the Tenth Circuit, that a government contractor which has fully performed its end of the bargain has no remedy when a government agency overcommits itself to other projects and, as a result, does not have enough money left in its annual appropriation to pay the contractor.

Here are the lower court materials.

And here are the materials in Ramah, the Tenth Circuit case that generates the circuit split.

American Indian Women and the SCOTUS’ Recent Decision on Violent Video Games

Matthew L.M. Fletcher

It may have gone unnoticed, but Justice Alito’s concurring opinion in Brown v. Entertainment Merchants Assn. listed a game where the “goal is to rape Native American women…” in his list of awful games offered by the video game industry. His citation for that game was a 1982 issue of People Magazine, available here (Custer Article). An old game, but it definitely is part of an ugly theme in Indian law and policy — sexual abuse of American Indian women.