It looks like I’ll have a short paper in the Federal Lawyer in the March/April 2008 issue they publish in conjunction with the FBA Indian Law Conference. This one is called “The Supreme Court and the Rule of Law: Indian Law Case Studies” and is based in part on my forthcoming Hastings Law Journal article, “The Supreme Court’s Indian Problem” (well, it’s sort of like outtakes from that article).
Here’s the abstract:
William Baude, a clerk for Judge McConnell of the CA10, has just posted “The Judgment Power” on SSRN, forthcoming in the Georgetown Law Journal.
Here’s the abstract:
An interesting question is brewing in the Ninth and Tenth Circuits — whether the administration of the National Eagle Repository (created by the USFWS as a means to create an exception to the Bald and Golden Eagles Protection Act for American Indians) is unconstitutional as applied to American Indians.
The Harvard Environmental Law Review published a case note on the Trail Smelter case, “Pakootas v. Teck Cominco Metals, Ltd.“ The Supreme Court will decide shortly whether or not the hear the case, though the Solicitor General has argued in favor of a denial of cert. The case involves water pollution of tribal waters at Colville by a Canadian smelter.
Justice Blackmun’s papers are starting to appear online. The docket sheets and the cert pool memos of each case in the docket years 1986 through 1993 are now available at this location. However, in order to find anything, you have to know the docket numbers.
I’ve listed all the Indian law cases I could find for those docket years. I used the United States Law Week categorization system, which puts Indian law cert petitions in the “Indians” or (now) “Native Americans” category. It does not do this for unpaid petitions, so my list is non-exhaustive. However, I captured a few important unpaid cert petitions because they were cross-referenced in other cert pool memos.
You can get this concordance at our occasional papers series website. It’s no. 2007-15.
It is a work in progress. Any additional information you have to make the concordance a better document would be much appreciated.
Alabama, Alaska, Arkansas, Connecticut, Florida, Idaho, Illinois, Iowa, Kansas, Massachusetts, Missouri, North Dakota, Oklahoma, Pennsylvania, South Dakota, and Utah have just filed an amicus brief supporting the State of Rhode Island’s petition for cert in Carcieri v. Kempthorne.
The brief is here: State Amicus Brief Supporting Cert Petition
The materials in the Teck Camino v. Pakootas case are at the Supreme Court Project website, here. Today, the United States responded to the Court’s call for the views of the Solicitor General by arguing in favor of a denial of the petition. In some respects, this is a victory for the tribal member plaintiffs, because it upholds the Ninth Circuit’s decision that CERCLA applies to the Canadian company’s discharges. But in another respect, it is a loss, because the EPA attempted to render the case moot by refusing to enforce its own finding that Teck Camino was liable. The SG argued that the case was moot because of this action.
Using the United States Law Week online database (that goes back to 1997 or so) that lists all the paid cert petitions filed, I generated a list of all cert petitions filed under the “Native Americans” database.
Here is a snippet of my findings, previously discussed here (and now updated):
Petitions filed by state governments, state agencies, or state officers in their official capacities: 27
Grants: 10 (including Alaska v. Venetie, Idaho v. Coeur d’Alene Tribe, Minnesota v. Mille Lacs, Montana v. Crow Tribe, Nevada v. Hicks, Sherrill v. Oneida, Wagnon v. Prairie Band, plus two GVRs).
Percentage: 37 % grant rate
Petitions filed by Indian tribes: 77
Grants: 6 (Cherokee Nation v. Leavitt, Chickasaw Nation v. United States, Kiowa Tribe v. Manufacturing Technologies, plus three GVRs).
Percentage: 8% grant rate
Now, excluding GVR’s, where the Court grants cert. for the purpose of remanding back to the lower court usually to allow the lower court to reconsider the case in light of a new precedent, here are the stats:
State petitions: 25
Grants: 8
Percentage: 32% grant rate
Tribal petitions: 74
Grants: 3
Percentage: 4% grant rate
Here’s my version of the wins and losses in the Supreme Court from 1959’s Williams v. Lee to 1987’s California v. Cabazon Band. And then from Cabazon Band to the last case (Wagnon). I conclude (similar to Alex Skibine in the North Dakota Law Review and David Getches before him in the California Law Review and the Minnesota Law Review), that tribes have won 12 out of 48 cases (I counted the “ties” as losses because they are more so a loss than anything else) since Cabazon. Prior to and including Cabazon all the back to Williams, tribes won 49 out of 82 cases, a 60 percent “win” rate.
1959-1987
Williams v. Lee (1959) — W
Federal Power Commission v. Tuscarora Indian Nation (1960) — L
United States v. Grand River Dam Authority (1960) — W
Seymour v. Superintendent (1962) — W
Metlakatla Indian Community v. Egan (1962) — W
Organized Village of Kake v. Egan (1962) — L
Arizona v. Californian (1963) — W
Warren Trading Post v. Arizona State Tax Commission (1965) — W
Poafpybitty v. Skelly Oil (1968) — W
Peoria Tribe v. United States (1968) — W
Puyallup Tribe v. Dept. of Game (1968) — L
Menominee Tribe v. United States (1968) — W
Choctaw Nation v. Oklahoma (1970) — W
Tooahnippah v. Hickel (1970) — W
Kennerly v. District Court (1971) — W
United States v. Southern Ute (1971) — L
Affiliated Ute Citizens v. United States (1972) — W
United States v. Jim (1972) — L
Mescalero Apache Tribe v. Jones (1973) — L
McClanahan v. State Tax Commission of Arizona (1973) — W
Keeble v. United States (1973) — W
United States v. Mason (1973) — L
Mattz v. Arnett (1973) — W
Department of Game v. Puyallup Tribe (1973) — L
Oneida Indian Nation v. Oneida County (1974) — W
Morton v. Ruiz (1974) — L
Morton v. Mancari (1974) — W
United States v. Mazurie (1975) — W
Antoine v. Washington (1975) — W
DeCoteau v. District Court (1975) — L
Fisher v. District Court (1976) — W
Colorado River Water Conservation Dist. v. United States (1976) — L
Moe v. Confederated Salish and Kootenai Tribes (1976) — W
Northern Cheyenne Tribe v. Hollowbreast (1976) — W
Cappaert v. United States (1976) — W
Bryan v. Itasca County (1976) — W
Delaware Tribal Business Committee v. Weeks (1977) — W
Rosebud Sioux Tribe v. Kneip (1977) — L
United States v. Antelope (1977) — W
Puyallup Tribe v. Dept. of Game (1977) — W
Finch v. United States (1977) — GVR
Oliphant v. Suquamish Indian Tribe (1978) — L
United States v. Wheeler (1978) — L
Santa Clara Pueblo v. Martinez (1978) — W
United States v. John (1978) — W
Washington v. Yakima Indian Nation (1979) — L
Wilson v. Omaha Tribe (1979) — L
Washington v. Fishing Vessel (1979) — W
State of Idaho ex rel. Evans v. Oregon & Washington (1980) — L
United States v. Clarke (1980) — L
United States v. Mitchell (1980) — L
Andrus v. Glover Constr. Co. (1980) — L
Washington v. Confederated Colville Tribes (1980) — L
Central Machinery v. Arizona State Tax Commission (1980) — W
White Mountain Apache Tribe v. Bracker (1980) — W
United States v. Sioux Nation (1980) — W
Montana v. United States (1981) — L
Merrion v. Jicarilla Apache Tribe (1982) — W
Ramah Navajo School Board v. Bureau of Revenue of New Mexico (1982) — W
Arizona v. California (1983) — W
New Mexico v. Mescalero Apache Tribe (1983) — W
Nevada v. United States (1983) — L
United States v. Mitchell (1983) — W
Rice v. Rehner (1983) — L
Arizona v. San Carlos Apache Tribe (1983) — L
Solem v. Bartlett (1984) — W
Escondido Mut. Water Co. v. Mission Indians (1984) — L
Three Affiliated v. Wold Engineering (1984) — W
United States v. Dann (1985) — L
Oneida County v. Oneida Indian Nation (1985) — W
Kerr-McGee v. Navajo Tribe (1985) — W
National Farmers Union v. Crow Tribe (1985) — W
Montana v. Blackfeet Tribe(1985) — W
Mountain States Tel. & Tel. Co. v. Pueblo of Santa Ana (1985) — L
Oregon Dept. of Fish and Wildlife v. Klamath Indian Tribe (1985) — L
Cal. State Board of Equalization v. Chemehuevi Indian Tribe (1985) — L
South Carolina v. Catawba Indian Tribe (1986) — L
United States v. Mottaz (1986) — L
United States v. Dion (1986) — L
Bowen v. Roy (1986) — L
Three Affiliated v. Wold Engineering (1986) — W
Iowa Mutual v. LaPlante (1987) — W
California v. Cabazon Band (1987) — W
49 wins — 33 losses — 60 percent “win” rate
1987-present
United States v. Cherokee Nation (1987) — L
Hodel v. Irving (1987) –L
Lyng v. Northwest Indian Cemetery (1988) — L
Employment Division v. Smith (1988) — L
Oklahoma Tax Commission v. Graham (1989) — L
Mississippi Band of Choctaw Indians v. Holyfield (1989) — W
Cotton Petroleum v. New Mexico (1989) — L
Brendale v. Yakima Indian Nation (1989) — L
Employment Division v. Smith (1990) — L
Wyoming v. United States (1990) — W
Duro v. Reina (1990) — L
Oklahoma Tax Commission v. Citizen Potawatomi (1991) — W
Blatchford v. Native Village of Noatak (1991) — L
County of Yakima v. Yakima Indian Nation (1992) — L
Negonsott v. Samuels (1993) — L
Oklahoma Tax Commission v. Sac and Fox Nation (1993) — W
Lincoln v. Vigil (1993) — L
South Dakota v. Bourland (1993) — L
Hagen v. Utah (1994) — L
Department of Taxation and Finance of New York v. Milhelm Attea (1994) — L
Oklahoma Tax Commission v. Chickasaw Nation (1995) — W
Seminole Tribe v. Florida (1996) — L
Babbitt v. Youpee (1997) — L
Strate v. A-1 (1997) — L
Idaho v. Coeur d’Alene Tribe (1997) — L
South Dakota v. Yankton Sioux Tribe (1998) — L
Alaska v. Native Village of Venetie (1998) — L
Montana v. Crow Tribe (1998) — L
Kiowa Tribe v. Manufacturing Techs. (1998) — W
Cass County v. Leech Lake Band of Chippewa Indians (1998) — L
Arizona Dept. of Revenue v. Blaze Constr. (1999) — L
Minnesota v. Mille Lacs (1999) — W
Amoco Production v. Southern Ute (1999) — L
Rice v. Cayetano (2000) — L
Arizona v. California (2000) — W
Dept. of Interior v. Klamath Water Users (2001) — L
C&L Enters v. Citizen Potawatomi (2001) — L
Atkinson Trading v. Shirley (2001) — L
Idaho v. United States (2001) — W
Nevada v. Hicks (2001) — L
Chickasaw Nation v. United States (2001) — L
United States v. White Mountain Apache Tribe (2003) — W
United States v. Navajo Nation (2003) — L
Inyo County v. Bishop Paiute (2003) — L
United States v. Lara (2004) — W
Cherokee Nation v. Leavitt (2005) — W
Sherrill v. Oneida Indian Nation (2005) — L
Wagnon v. Prairie Band Potawatomi Nation (2005) — L
12 wins — 36 losses — 25 percent win rate
The Tribal Supreme Court Project spearheaded this amicus brief in the voter ID cases, Crawford v. Marion County Election Board (No. 07-21) and Indiana Democratic Party v. Rokita (No. 07-25).
Turtle Talk 
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