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Supreme Court
Bill Kidder Responds to Michigan’s Empirical Assertions in Coalition to Defend — American Indian UC Enrollment Highlighted
Here, via SCOTUSblog.
An excerpt:
With respect to American-Indian students, the percentage enrolled at the University of California was lower in 2012 than in 1996 on seven of nine campuses: Berkeley, Davis, Los Angeles, Riverside, San Diego, San Francisco, and Santa Barbara. In summary, even with the remarkable expansion of 72,000 seats (and a new campus) at UC during this span, the percentage of African- American and American-Indian students enrolled in the UC system was still lower in 2012 than it was in 1996.
New Study on Humor at Supreme Court Oral Argument Finds Gender Inequality
Ryan A. Malphurs, Jaime Bochantin, L. Hailey Drescher, and Melissa Wallace Framer have posted “Too Much Frivolity, Not Enough Femininity: A Study of Gender and Humor at the U.S. Supreme Court” on SSRN. Here is the humorous abstract:
The four authors in this study took on the exhilarating task of listening to 79 oral arguments in the Supreme Court’s 2011-2012 term. After two years spent recovering from oral argument overload, the authors have prepared a study that ingeniously tricks readers into reading a study on humor that is really about gender inequality at the Supreme Court and in the field of Law. Initially tallying instances of un-transcribed laughter, the authors — prompted by Hillary Clinton’s urging — began noticing gender and humor discrepancies between the justices and the advocates; what started as a simple humor tabulation devolved into important research. In the following study, the authors lull readers into complacency by offering data related to humor, but then shock their audience with serious data about gender inequality — ruining any fun that readers might have had. It’s true the authors show that the Supreme Court is far funnier than previously thought, and that Justice Scalia enjoys bullying Justice Breyer; however, potential readers should turn back now, because what follows is mind numbing boredom and “PC” discussions about gender veiled within a “humor” study.
The authors would like readers to know that the following study, if you haven’t been able to tell already, does not follow traditional scholarly conventions. “Why?” you may ask, because it would be boring and no one would read it, duh. The authors have endeavored to make this study both interesting in the data and entertaining to read — a truly ground-breaking feat in scholarly studies. Great risk comes with great rewards, and we’re just hoping someone other than ourselves will read this study.
Hat tips to How Appealing and Gender and the Law Blog.
Commentary on the Final Dismissal of the Onondaga Nation’s Land Claims: “Tribal Disruption and Indian Claims”
Today, the Court surprised no one by denying the cert petition in Onondaga Nation v. New York. The Court did the same thing twice before, in the claims of the Cayuga and Oneida Nations. You may recall that the Second Circuit affirmed the dismissal of the Onondaga land claims using this language: “The disruptive nature of the claims is indisputable as a matter of law.” According to the Second Circuit, all Indian land claims are too disruptive to be heard on the merits, as a matter of law.
Later this year, Kate Fort, Nick Reo, and myself will publish a short paper in the Michigan Law Review’s online supplement, First Impressions, titled “Tribal Disruption and Indian Claims.” It is our intention to demonstrate that even the most disruptive tribal claims are beneficial to the governance of Indians and non-Indians alike on or near Indian country. We will expand this nub of an idea in a full-scale paper next year. We also thank Wenona Singel for her significant intellectual contributions to this idea.
Here is an excerpt:
We agree that Indian claims are inherently disruptive, and may implicate the settled expectations of state and local governments and non-Indians going back centuries, but it is empirically and categorically false that the remedies sought by tribal interests are impossible to enforce or implement in a fair or equitable manner. Every year Indian tribes settle long-standing claims against state governments and their political subdivisions that at their outset often appear intractable, if not downright impossible to remedy. The recent settlement of claims by the Oneida Indian Nation of New York,[1] the Saginaw Chippewa Indian Tribe,[2] and five Michigan Anishinaabe tribes[3] demonstrates the falsehood that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function, forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.
We argue that ecological disruption theory offers a useful analog to the disruptive nature of Indian claims. These claims can be compared to disturbances in rivers, forests or other ecosystems. Floods, forest fire, and windstorms break down existing structures, allowing space for reorganization, diversification and new growth. Tribal claims similarly clear out a legal space for creative and improved governance institutions.
[1] See Settlement Agreement by the Oneida Nation, the State of New York, the County of Madison, and the County of Oneida (May 2013), available at https://turtletalk.blog/wp-content/uploads/2013/05/142783486-oneida-indian-nation-settlement-agreement.pdf.
[2] See Joint Motion to Enter Order for Judgment Upon Completion of a Public Comment Period and Opportunity For the Parties To Respond, Saginaw Chippewa Indian Tribe of Michigan v. Granholm, No. 05-10296-BC (E.D. Mich., Nov. 9, 2010), available at https://turtletalk.wordpress.com/2010/11/10/saginaw-chippewa-reservation-boundaries-settlement-materials/.
[3] See Consent Decree, United States v. Michigan, No. 2:73-cv-00026-RAE (W.D. Mich., Nov. 2, 2007), available at https://turtletalk.wordpress.com/2007/11/07/inland-settlement-consent-decree-materials/.
Onondaga Nation Press Release on Denial of Cert
Here (pdf).
The Onondaga Nation’s struggle for justice will not end with today’s denial; and the Nation is working with its attorneys to file a challenge in an international arena–either the United Nation or the Organization of American States Commission on Human Rights.
“We have recognized for years, that no justice would come to the Nation in US courts,” said Onondaga Nation General Counsel, Joe Heath. “The struggle for healing and justice will continue; and this is no longer a land rights case–it is a land rights movement. It is time to admit these historic harms; and it is time for justice, time for healing.”
Contact: Joe Heath, (315) 447-4851; jheath@atsny.com
Previous coverage here.
SCT Denies Cert in Onondaga v. New York
Here is the order list.
We will have more commentary on this soon.
Turns Out the Supreme Court Isn’t All that Activist….
Here.
On Justice Sotomayor’s Judicial Philosophy
Angelique EagleWoman sent around this short article commenting on Justice Sotomayor’s judicial philosophy, which contains this remark:
In literally every case involving Native American rights in any form, Sotomayor has always sided with the Natives. In Match-E-Be-Nash-She-Wish Band v. Patchak, U.S. v. Jicarilla Apache Nation, Salazar v. Ramah Navajo Chapter, and most recently in Adoptive Couple v. Baby Girl, Sotomayor has taken the side of the Native American parties, even if that meant her being one of the only dissenters, if not the sole dissenter.
Thus, even though Sotomayor can be accurately labeled as “liberal, but unpredictable,” she’s still quite predictable in cases involving Native rights.
– See more at: http://westlawinsider.com/top-legal-news/sonia-sotomayor-liberal-yet-unpredictable-with-one-exception/#sthash.1d1vpQzq.dpuf
As an advocate for most tribal causes, I find it refreshing to see a Justice take an interest in Indian law and tribal interests. Even when she’s in dissent, which she will be nearly every time until (and if) there is a massive shift in the Supreme Court, she gives a voice to the tribal advocates and their cause that has been missing since the retirements of Justices Blackmun and Brennan (and, I would argue, the entire history of the Supreme Court and the federal judiciary). In fact, Justice Sotomayor’s SCT record is far better than tribal advocates could have hoped when President Obama nominated her.
But a word of caution. My sense is that the strong dissents coming from Justice Sotomayor are being heard by those on the Court in opposition to her views — and they are responding in kind. I read Jicarilla and Adoptive Couple (despite the real and continuing tragedy of that case) as being very narrow questions, but looking at the majority opinions, there are broad statements directly attacking important understandings of tribal interests that might not have appeared in a majority opinion except in response to a strong dissent. Would Justice Alito have made such damning remarks about the trust responsibility and the Indian Child Welfare Act unless the legal positions the majority adopted had not been so powerfully attacked by Justice Sotomayor? I wonder.
An analog of sorts are the equal protection cases, where there is simply no full-throated defense of marriage equality from the liberals on the Court so terrifically and justifiably worried about losing Justice Kennedy’s vote. When you’ve the votes, you don’t need to defend the position as much. But, in the case of affirmative action, where the last strong defense of AA came in Bakke, the liberal side’s analysis hasn’t been developed at all. It has hurt in the long run.
In sum, Justice Sotomayor’s dissents are outstanding and powerful, and much of what she argues may one day become the law. At least someone on the Court is making those arguments. And I suspect the majority knows, like Justice Scalia admitted in other contexts, that they’re on the wrong side of history; hence, the expansive dicta. And to lower court judges, dicta is the law. Tribes are timeless entities. But there’s a long slog ahead.
P.S. I thank Yale law prof. Reva Siegel, whose scholarship and comments significantly influenced these views of mine.
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