From the NLJ (downloadable version):

Indians try to keep cases away from high court
Marcia Coyle
March 29, 2010

The Supreme Court has not granted review of any Indian law cases in the current term, but you won’t hear complaints from the Tribal Supreme Court Project.

Most lawyers work hard to keep their lower court victories out of the Supreme Court, but sometimes, fearing hostile justices, they look to avoid the high court even when they have lost.

That’s the position in which the tribal project, a joint venture of National Congress of American Indians and the Native American Rights Fund, finds itself today as it painfully considers its zero-for-five record before the Roberts Court.

“We view this Court as not favorable on our issues,” explained Richard Guest, senior staff attorney at the Native American Rights Fund.

Last term, recalled Guest, the justices granted review in three Indian law cases. “We had prevailed in the lower courts in all three and then lost all three in the Supreme Court,” he said. “We did a little bit better than some folks — environmentalists lost five cases which they had won in the lower courts — but we are all batting zero.”

The Tribal Supreme Court Project is part of the Tribal Sovereignty Protection Initiative and was formed in 2001 in response to a series of negative decisions affecting tribal sovereignty in the mid-1990s, according to Guest.

“We had a winning percentage from 2001 to 2005 but now we’re back to a situation where we are zero for five,” he said.

There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States.

“If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases,” said Guest.

His concern gets some support from a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: “Factbound and Splitless: Certiorari and Indian Law.” From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases decided by the Supreme Court. But since Cabazon, tribal interests have lost more than 75 percent of their cases.

Fletcher, who studied more than 160 cert petitions filed between 1986 and 1994, concluded that the Court’s certiorari process itself is a barrier to justice for tribes and individual Indians. Cert pool memos by the Court’s law clerks showed, he reported, that clerks overstate the merits and importance of petitions filed by states against tribal interests, while understating the merits and importance of tribal petitions.

“Tribal petitions, often involving the interpretation of Indian treaties or complicated and narrow common law questions of federal Indian law, are readily deemed ‘factbound’ and ‘splitless,'” explained Fletcher. “Conversely, the cert pool values and perhaps better understands the interests of state and state agency petitions, as well as the way the pool’s audience (the Court) understands and values the interests of states. Thus, the pool’s recommendations favor states and state agencies far more. The result, frankly, is that tribal petitions on a question will almost never be favored, whereas state petitions on the same question will often be favored.”

Fletcher concluded, “While the admonition that tribal interests should do their very best to avoid the Supreme Court is not new, the findings of this study also demonstrate with increased force and clarity that Supreme Court adjudication is an extraordinarily hazardous process for tribal interests.”

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