Here.
Sotomayor Confirmed — But You Knew That Already, Didn’t You….
Here.
Supreme Court
Poll: Americans Want Native American on Supreme Court
From U.S. News:
August 04, 2009 11:56 AM ET |
By Nikki Schwab, Washington Whispers
The president has cheered diversity on the Supreme Court with his nomination of Sonia Sotomayor, who would be the first Hispanic and third woman to be appointed to the bench. For his next pick, we turned to you in our most recent Whispers poll.
Respondents chose racial diversity over religious diversity or difference in sexual orientation. A whopping 50 percent of those surveyed said they would like to see President Obama choose a Native American for the Supreme Court if the president got a second selection. Nineteen percent said they would like to see Obama appoint an Asian and 16 percent an African-American justice. Only 13 percent hoped to see a gay or lesbian justice as Obama’s next pick. And coming in last, with 2 percent, was a Muslim justice.
The Economics of the Cert Pool — Former Clerks and Appellate Lawyers
OK, not an economist, but it seems to me that more than just Justices Stevens and Alito are going to have to forego the cert pool to maintain the economic viability of the Supreme Court cert pool.
And by economic viability, I mean for the former clerks and for others who are a part of the Supreme Court bar.
Consider first, that (perhaps until the last year or so), former Supreme Court clerks stood to gain a $50,000 or so bonus at their firm just for being a clerk. The experience of reading several hundred cert petitions and opps, and writing cert pool memos, plus knowing the inner workings of the Court, is invaluable once those clerks go out into the real world and start practicing before the Court.
But consider second, as noted here, that appellate litigators have a hard time explaining to clients why only two or three clerks will read their very expensive cert petition (or even cert opposition) before the whole thing is tossed without comment by the Court. Those clerks are the cert pool clerk, Stevens’ clerk, and Alito’s clerk, but maybe not even that many, since the Stevens and Alito clerks could just read the cert pool memo.
A modest proposal — there should be TWO cert pools. Let’s face it — the Court is generally split, with Roberts, Scalia, Alito, Thomas, and Kennedy (the most conservative swing judge in at least 120 years, or ever) on one side, and Breyer, Ginsburg, Stevens, and likely Sotomayor on the other. I’ve read enough cert pool memos to know that they’re written usually by clerks who know their audience — a majority of conservative, federalism judges with an originalist bent. Justices like Breyer, Ginsburg, and Souter (and Blackmun before them) joined out of convenience and probably cordiality. No reason for it. Everyone’s going to see the other cert pools memos. And getting the preliminary views of more than one clerk is reason alone to do it, but now those Supreme Court litigators can say more clerks are reading those cert petitions….
Challenge to Muscogee Fee to Trust Looms
From ICT:
By Rob Capriccioso
WASHINGTON – On the heels of a Supreme Court decision that complicates land into trust matters for tribes, a policymaker from Tulsa, Okla. is organizing a fight against the land into trust interests of the Muscogee (Creek) Nation.
City Councilor Bill Christiansen is currently drafting a resolution against efforts by the Muscogee Nation to work with the BIA to place two parcels of land into federal trust.
Christiansen, who is the president of an aviation company, said the resolution is needed because the city would lose more property and sales taxes if the BIA grants more land into trust for the tribe. He said the city has already lost much money due to the tribe’s non-taxable existence, yet the city still has to pay for public services that benefit tribal members.
He also worries that the tribe could build a mall on the lands in contention, which would compete with facilities in the city that pay property and other taxes.
A Call to Senator Al Franken re: Sotomayor Confirmation Hearings
It looks like Sen. Al Franken of Minnesota is the only Democratic member of both the Judiciary and Indian Affairs committees. Sen. Franken, who visited Indian Country a few times in his campaign for the Senate, may be the only Senator who would even consider asking Judge Sotomayor a question about Indian law.
A straight up question about Indian law doctrines is likely to get a response about how the nominee would not comment on a particular case, and a question asking her what she knows about Indian law might do nothing except embarass her, so here are a few potential topic areas that could get at how the nominee might view tribal interests.
1. Federalism. Would she be persuaded by a canon of statutory construction that would construe very narrowly a law that limits state authority? Does she think the Constitution establishes a hierarchy of sovereigns, with state governments at the virtual top?
2. Minority property rights. Is Judge Sotomayor aware of how the U.S. acquired sovereignty over Puerto Rico, or New Mexico and California, or Indian Country east of the Mississippi, or Indian Country west of the Mississippi? How about the different character of treaties that both established and preserved property rights for discreet catagories/classes of Americans? Would she respect them? One expects the answer to the Puerto Rico question is yes.
3. Rule of Law. Tribal interests, like many other plaintiffs, raise claims based on clear violations of law by state or other actors. The Roberts Court often reaches outcomes rejecting those claims by relying on arguments never or only partially presented by the parties, often creating entirely new law to undermine the claims. Would Judge Sotomayor respect the rule of law in these contexts? Under what circumstances would she be willing to go beyond the arguments of the parties to decide a case?
Sen. Franken would make a huge splash in federal Indian law and policy by even hinting at caring about Judge Sotomayor’s views on tribal interests. Here’s hoping he does it.
Citizen Potawatomi Chair Files Cert Petition in Tax Dispute
Here is the cert petition in Barrett v. U.S. (docket no. 09-32) — Barrett v. US Cert Petition
Questions presented:
1. Whether an Indian tribe can use Indians Claims Commission Act funds, appropriated by Congress and distributed to the tribe with a specific exemption from federal income tax, to pay federal income tax exempted salaries to elected officials the tribe is required to have under its tribal constitution.
2. Whether the imposition of a penalty by the Internal Revenue Service against the tribal chairman for sovereign legislative actions of the tribe improperly infringes on the tribe’s sovereign powers.
Lower court materials are available here.
News Coverage of Stratman v. Salazar
From the Anchorage Daily News (and the briefs are here):
KODIAK — The U.S. Supreme Court has denied a request to review a land dispute between a Kodiak rancher and a village Native corporation, effectively ending a court battle that has dragged on for more than three decades.
The decision Monday affirms a ruling by the 9th U.S. Circuit Court of Appeals’ last year in favor of Leisnoi Inc., the Native corporation of Woody Island.
Rancher Omar Stratman sued in federal court two years after federal officials in 1974 certified Leisnoi as a Native village and conveyed to it 160,000 acres of public lands as an aboriginal land claim under the Alaska Native Claims Settlement Act.
Stratman contended Leisnoi did not have the required population as stipulated under ANSCA and could not claim land he leased from the U.S. Bureau of Land Management.
ICT: “Courting Sotomayor”
By Rob Capriccioso (article link):
WASHINGTON – She grew up in poverty. She has diabetes. She has familial roots in a non-state with special rules of governance (Puerto Rico). She’s an underrepresented minority. She’s proud of her unique heritage.
She’s Sonia Sotomayor; President Barack Obama’s pick to replace retiring Justice David Souter to serve on the U.S. Supreme Court.
And some Native American legal advocates think all of the above qualities are some pretty good starting points to help her understand how much she has in common with many in Indian country.
On Peter d’Errico, the Supreme Court, and Plenary Power
Peter d’Errico’s op-ed “Advocacy and Change in Federal Indian Law” in last week’s ICT raises some critical questions about the Supreme Court as we conclude yet another Term with more bad news for Indian Country. Of note, Mr. d’Errico argues that Justice Scalia (and probably some other Justices) regard federal Indian law being based in “conquest” as opposed to the “pretense of conquest” under the rhetoric used by Chief Justice Marshall in the 1820s and 1830s. d’Errico then argues that Indian lawyers dutifully accept this notion of “conquest” in refusing to argue against the plenary power of Congress over Indian affairs, and by extension Indian tribes.
This is not a new debate, as Indian law scholars like Rob Williams and Rob Porter have been making these arguments against plenary power and against the complicity of Indian lawyers in accepting the plenary power framework since the 80s, extending claims originally made by Vine Deloria in the 70s.
But it’s a bit dated now. It is true that Congress and the Executive have asserted and abused plenary power since the Supreme Court recognized plenary power, allowing the government virtually absolute power over Indian tribes’ internal and external workings. But since about the 1970s, plenary power is a footnote. “Plenary” no longer means “absolute” — it means all the power necessary to effectuate Congress’s authority, as in the Necessary and Proper Clause. And tribes now rely on Congress’ plenary power — in the Duro Fix, the Indian Child Welfare Act, etc. Congress hasn’t unilaterally abrogated an Indian treaty in decades.
The real problem now is judicial review of Indian affairs. Going to the Supreme Court and asserting that the U.S. never conquered Indian tribes will confuse and likely anger the Court. As Rob Williams suggested in his recent book “Like a Loaded Weapon,” tribal advocates need a plan to undermine judicial review of Indian affairs (my phrasing). What would happen if tribal advocates persuaded the Court that Congress has limited authority under the Indian Commerce Clause? Just as Justice Thomas suggested in his Lara concurrence, the states or perhaps the President would acquire the authority in Congress’s void. No net advantage to tribes there. No, a strategy is needed.
Stanley Fish on a Justice with Empathy
From the NYTs:
What Kind of Judges Do We Want?
Last week I participated in a discussion of judging under the auspices of the Brennan Center for Justice. The event was held at the New York University School of Law, where an invited audience of about 80 interacted with three panelists – John Payton, head of the NAACP’s Legal Defense Fund, Burt Neuborne, professor of law at NYU and me. We were held in check by moderator Dahlia Lithwick of Slate.com and Newsweek.
The question we were there to take up was, “What kind of Supreme Court justices do we want?” The topic was set before the nomination of Sonia Sotomayor, but of course the upcoming hearings of the Judicial Committee were on everyone’s mind. And so there was a lot of talk about empathy against the background of President Obama’s praise of it and Judge Sotomayor’s now famous or infamous speculation that a wise Latina might know something an old white guy did not.
At one point moderator Lithwick asked, “Is empathy a useful term? Is it helpful?” I replied that it’s probably a bad idea to use a word that has to be explained or explained away five times a day. It’s been useful and helpful to conservative bloggers but not to either Obama or Sotomayor. Of course it’s too late to retire it; we’re stuck with it.
Turtle Talk 
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