Here:
Petition here.
Supreme Court
Justices Gorsuch and Thomas Signal Interest in Overruling Kagama (+ Commentary)
Here is today’s order list, with an opinion by Justice Gorsuch (joined by Justice Thomas) dissenting from the denial of certiorari in Veneno v. United States:
Briefs:
Petition for Certiorari – Veneno
This is hardly a surprise given that both judges were critical of the Kagama decision. One presumes they come at this issue with a far different eye toward the outcome. Justice Thomas dissented in Brackeen because he found little constitutional text authorizing Congress’ Indian affairs powers. Thomas has seemingly sought an endgame to Indian affairs by attacking Congressional powers and tribal sovereignty. Justice Gorsuch found plenty of Congressional Indian affairs power in the text and structure of the Constitution, but not “plenary power” as described by the Kagama Court. His views are seemingly more in line with scholars like Bob Clinton, who saw no Congressional power to regulate the internal governance of tribal nations.
Certainly on a superficial level, who can really like Kagama? After all, the Court’s characterization of Indian people is unbelievably racist. It’s formalistic reading of the Constitution is also pretty . . . well, formalistic. There are important things in Kagama though, such as the notion that Congress possesses at least some powers by virtue of the duty of protection. Kagama is largely a dead letter anyway, since the Court has essentially already adopted Justice Gorsuch’s view of Congressional powers (e.g., Negonsott v. Samuels and U.S. v. Lara).
If these judges get their way and the Court eventually accepts a vehicle to review Kagama, for judges like Gorsuch, it might be merely housecleaning, but for judges like Thomas, it’s a potential revolution. There is ever-present the conflict between a formalist (Thomas) and a functionalist (Gorsuch) reading of the Constitutional text. I will continue to worry if the Court decides it needs to address Kagama if that’s the framing. It would be odd if the Court decided it needed a case to clean up its jurisprudential mess — full employment for Indian law profs!!! — where the law is settled.
More worryingly (perhaps?), the vehicle to reassess Kagama can only really be a federal criminal case. A vehicle like that will not be a good one to set the boundaries of Congressional authority over tribal nations, but instead a vehicle for revisiting Brackeen’s Congressional powers holding.
In the end, it’s just these two, so don’t hold your breath.
Stroble v. Oklahoma Tax Commission Amicus Briefs in Support of Petition
Siletz Takes Unusual Step of Filing an Amicus Brief in Opposition to Chinook’s Federal Recognition Cert Petition Where Feds Had Already Declined to Respond
Tribal Nations Amicus Brief in Enbridge v. Nessel
SCOTUS Denies Unkechauge and Stitt Petitions [Update: And Maverick, too]
Stroble v. Oklahoma Tax Commission Cert Petition
Here:
Question presented:
Whether Oklahoma may tax the income of a Muscogee (Creek) Nation citizen who lives and works within the Muscogee (Creek) Reservation that McGirt v. Oklahoma, 591 U.S. 894 (2020), held remains Indian country.
Lower court materials here.
Chinook Indian Nation v. Burgum Cert Petition [federal recognition]
Here:
Question presented:
Does a federal court have jurisdiction to recognize the existence of an Indian tribe where the findings in the Indian Tribe List Act, Public Law 103-454, sec. 103(3), provide that “Indian Tribes presently may be recognized by . . . a decision of a United States court,” and no other federal statute addresses the question of tribal recognition?
Lower court materials here.
Update:
Alaska v. United States Cert Petition [Alaska Native fishing subsistence rights]
Here:
Question presented:
Whether the United States can regulate fishing on Alaska’s navigable waters under the Alaska National Interest Lands Conservation Act, when its statutory authority is limited to “public lands” and that term is defined as “lands, waters, and interests therein … the title to which is in the United States.”
Lower court materials here.
John LaVelle on the Uses and Abuses of Johnson v. McIntosh by the Supreme Court
John LaVelle has published “Uses and Abuses of Johnson v. M’Intosh in Native American Land Rights Cases: Investigative Insights from the Indian Law Justice Files” in the Montana Law Review.
Here is the abstract:
The 200th anniversary of the foundational Indian law decision Johnson v. M’Intosh has come and gone, with many scholars contributing criticism and commentary. The dominant focus has been the case’s notorious embrace of the so-called “doctrine of discovery,” an odious theory for rationalizing European nations’ claims of superior rights to lands occupied by Indigenous Native American peoples. Commanding less attention, however, is the Johnson decision’s core protective legal feature, i.e., its reinforcing the United States government’s duty to guard against the alienation of Indian lands through private, unauthorized acquisitions.
This Article offers a somewhat different appraisal of Johnson v. M’Intosh in the context of controversies over Indigenous rights. Notwithstanding the case’s offensive dicta, the unanimous Johnson opinion retains efficacy in safeguarding Native American land rights, provided certain infamous abuses of the decision as precedent can be identified and rectified. Accordingly, this Article examines instances of the modern Supreme Court’s distorting and misusing Johnson v. M’Intosh to damage, weaken, or deny Indian land rights. In centering attention on this abuse, the Article draws on eye‑opening, seldom‑viewed documents found among the papers of Supreme Court Justices archived at the Library of Congress and various universities across the country. The Article also discusses a series of modern‑era opinions by Supreme Court Justices that exemplify instructive conformity to and reliance upon Johnson’s protective features. Moreover, as a response to the joint call for papers issued by the Montana Law Review and the Public Land & Resources Law Review, the Article does not take merely a rear‑view‑mirror look at Johnson v. M’Intosh. Rather, this Article aspires to cast light on judicial distortions and misrepresentations of Johnson to help illuminate a “Vision for the Future” in legal battles over Indigenous property rights.
An accompanying Compendium of Exhibits from the Papers of Supreme Court Justices is available here.
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