Supreme Court

Justice Ruth Bader Ginsburg’s passing offers an opportunity for reflection on her Indian law legacy. As many of you know, we keep a list of modern era Supreme Court cases here. RBG was on the court nearly 30 years, and her record is extensive. It is also, from the point of view of tribal interests, checkered. But if her replacement had a similar record, it wouldn’t be a disaster for Indian country.

Overall, RBG voted in 51 cases in which the Court issued an opinion. She voted with tribal interests 23 1/2 times, against tribal interests 26 1/2 times, and 1 time voted with individual Indians against federal and tribal interests. She wrote 10 majority opinions (nearly 20 percent of those cases!), 3 1/2 favoring tribes (and 1 favoring individual Indians), and 6 1/2 against. Out of these 51 cases, tribes won 19 1/2 cases and lost 32 1/2 (33 1/2, if you count the 1 case involving individual Indians). She voted with tribal interests more often than the Court, but not by much. There are also two cases that were 4-4 ties (tribes won both), but we don’t know where she voted. [there are going to be errors in this post, I did it quickly, so chillax]

Incidentally, tribes have prevailed in 11 out of 13 cases since 2014 (!!!!).

Here are her majority opinions in reverse chronological order:

U.S. v. Bryant (2016)

Decision favoring federal court enhanced sentence under 18 U.S.C. § 117 of habitual D.V. offender with several (dozens?) of uncounseled tribal court convictions.

Sherrill v. Oneida Indian Nation (2005)

Terrible. Some say RBG regretted this decision. Led to the summary evisceration of the New York Haudenosaunee land claims.

Inyo County v. Bishop Paiute (2003)

Held tribes are not “persons” under 42 U.S.C. § 1983, and cannot sue states for violations of federal laws.

United States v. Navajo Nation (2003)

Struck a $600 million judgment favoring the Navajo Nation despite apparent corruption in the Interior Department.

C&L Enters v. Citizen Potawatomi (2001)

Found an implied waiver of tribal immunity in a boilerplate construction contract. RBG routinely voted against assertions of tribal, state, and federal immunuiy.

Arizona v. California (2000)

Allowed Quechan Tribes water rights claims to proceed.

Montana v. Crow Tribe (1998)

Excused state from having to repay taxes illegally collected from tribe.

Strate v. A-1 (1997)

Held against tribal jurisdiction over a car wreck on a state highway running on trust lands within a reservation.

Babbitt v. Youpee (1997)

Struck down the Indian Land Consolidation Act’s escheatment provision in favor of individual Indian interests.

Oklahoma Tax Commission v. Chickasaw Nation (1995)

Adopted incidence of tax analysis to strike state tax of motor fuels but to allow collection of state income tax of off-reservation income of tribal members.

RBG also wrote important concurrences and dissents. Here is a sampling:

Patchak v. Zinke (2018)

Wrote concurrence affirming constitutionality of Gun Lake Trust Lands Act in 5-4 case.

Lewis v. Clarke (2017)

Wrote concurrence against tribal interests in tribal employee immunity case.

Nevada v. Hicks (2001)

Wrote concurrence, apparently trying to stop the extension of her opinion in Strate.

Here is where I called Donald Trump an asshole for predicting RBG’s death. He remains an asshole.

There is a lot more to say, but this is it for now.

Mark Trahant (ICT) on Native Lawyers Who Should Be Considered for SCOTUS

September 16, 2020Matthew L.M. Fletcher

Here is “The most important thing a president can do.”

An excerpt:

Yet there have always been Native American lawyers who could have served; the talent has always been there. It’s possible the next round of appointments could make history because so many Native American lawyers have the same or better legal experience than other appointments to the courts.

“Even over the past few years we have always had really great well qualified attorneys,” said Joel West Williams, Cherokee Nation, a senior attorney with Native American Rights Fund in Washington. “The biggest thing that has changed is they have worked their way into positions such as state supreme court justice — and that is a prime position from which to be selected.”

There are three Native Americans actively serving in the federal courts. President Barack Obama appointed U.S. District Judge Diane Humetewa, Hopi, in Arizona, and U.S. District Judge Derrick Watson, Native Hawaiian, in Hawaii. President Trump appointed U.S. District Judge Ada Elene Brown, Choctaw, in the Northern District of Texas.

There are three Native Americans now serving on state supreme courts, Justice Rachel Montoya-Lewis, Isleta Pueblo, in Washington, Ann McKeig, White Earth, and in Oklahoma, Dustin Rowe, Chickasaw.

Muckleshoot v. Tulalip U&A Cert Petition

August 24, 2020September 22, 2020Matthew L.M. Fletcher

Here is the cert petition in Muckleshoot Indian Tribe v. Tulalip Tribes:

Cert Petition

Question presented:

Whether the Ninth Circuit, in conflict with precedent of this Court and the D.C. Circuit, impermissibly narrowed a decades-old judicial decree so as to deprive Indian tribes of their ability to exercise treaty fishing rights.

Lower court materials here.

Update:

Brief in Opposition

Indian Law Professors Amicus Brief in Fulton v. City of Philadelphia

August 21, 2020Matthew L.M. Fletcher

Here:

Amicus Brief of Indian Law Professors

An excerpt:

Amici write to explain how the long and shameful history of treatment of Indian children by the child welfare system in the United States demonstrates the dangers of and substantial harms inflicted by discrimination in this setting, including in particular discrimination based on the religious beliefs of government employees or agents

Miigwetch to April Youpee-Roll for taking the lead!

Troy Eid: “McGirt v. Oklahoma: Understanding What the Supreme Court’s Native American Treaty Rights Decision Is and Is Not”

August 13, 2020Matthew L.M. Fletcher

Here, in the National Law Review.

MoJo: “How Native Tribes Started Winning at the Supreme Court”

August 6, 2020Matthew L.M. Fletcher

Here.

Marshall Project Profile of Post-McGirt Criminal Jurisdiction in Oklahoma

August 4, 2020August 5, 2020Matthew L.M. Fletcher

Here.

And, yes, we know the Marshall Project headline is inaccurate, but High Country News (publishing in tandem with M.P.) did it better: “How the Supreme Court upended a century of federal Indian law.”

United Parcel Service Inc. v. New York Cert Petition

August 4, 2020Matthew L.M. Fletcher

Here:

UPS Cert Petition

Appendix

New York Brief in Opposition

Questions presented:

1. The Contraband Cigarette Trafficking Act prohibits the knowing transportation of “a quantity” of more than 10,000 untaxed cigarettes in the “possession” of unauthorized persons. 18 U.S.C. § 2341(2). The first question presented is whether multiple shipments from different shippers may be aggregated to satisfy the 10,000-cigarette threshold.
2. The Prevent All Cigarette Trafficking Act of 2009 exempts UPS by name if its tobacco-delivery agreement with New York is “honored” nationwide. 15 U.S.C. § 376a(e)(3)(B)(ii)(I). The second question presented is whether substantial compliance is a prerequisite to this statutory exemption.

Second Circuit materials here:

CA2 Opinion

UPS Brief

New York Opening Brief

UPS Reply

New York Reply

DCT materials here.