Here:
13A115 Birth Father v Adoptive Couple
SCOTUSblog coverage here.
Supreme Court
Tribal Interests Win-Loss Rates in the 21st Century — Trend Downward for Tribal Interests?
Ok, so I used the westlaw search function and dug up all the cases from the federal courts of appeal (published and whatever unpublished opinions show up) that included the words “Indians” or “tribe.” That got me well over 3600 cases for 2000-present, so I used westlaw’s relevance function to make them most relevant for me. The first 850 or cases usually included what I call “tribal interests” — then the drop-off was steep so I stopped looking at 1000. [I should note that the Tohono O’odham case that went to the Supreme Court didn’t show up until 990s, so there’s that.] I counted wins and losses, excluded cases where tribes went against tribes, Indians went against tribes (except in criminal cases — a few ICRA habeas cases, in other words), and most criminal cases involving Indian defendants (except where Indian country/reservation boundaries had play, and Duro fix-style cases). I split them up by 2000-2009, and 2010-present.
2000-2009
Tribal interest wins — 233
Tribal interest losses — 179
Winning percentage — 56.6 percent
2010-present
Tribal interest wins — 55
Tribal interest losses — 77
Winning percentage — 41.7 percent
So we’re one-third or so through the 2010s, and things aren’t looking so great for tribal interests. Is this significant, statistically or otherwise? Make your own judgments.
A few more comments on methodology. Yeah, I know “wins” and “losses” are subjective, but they’re not really. A tribe is an appellant, the appellate court reverses. That’s a win. Also, what is a “tribal interest”? That’s a little more in the eye of the beholder. And since I am the beholder, I call it as I see it.
With a few thousand RA hours at my disposal, I could do this going back forever, set it out by appellate court, whether there was a dissenter, results in published versus unpublished opinions, what the majority of the panels’ political affiliations were, and how often the Supreme Court granted cert and reversed, etc. Not going to happen this year, but it will happen.
That reminds me. Nineteen times the Supreme Court granted cert off of tribal interest wins below (no idea out of how many cert petitions). Twice the Supreme Court granted cert off of tribal interest losses below (Patchak and Chickasaw, both cases in which the OSG sought or acquiesced in the petition, and both affirmed).
Certiorari off of Tribal Interest Wins in COAs
288 wins
19 grants
6.6 percent of wins end up at the Supreme Court
Certiorari off Tribal Interest Losses in COAs
256 losses
2 grants
0.8 percent of losses end up at the Supreme Court
Outstanding New Paper on Federal Trust Land Acquisitions by Frank Pommersheim
Frank Pommersheim has published an important new paper titled “Land Into Trust: An Inquiry into Law, Policy, and History” in the Idaho Law Review. A PDF is here:
Here is the introduction:
The land-into-trust policy of the Indian Reorganization Act (“IRA”) is an express legislative attempt to undo, or at least ameliorate, the massive loss of Indian land that resulted from the federal government’s allotment policy of the late nineteenth *520 and early twentieth centuries. The allotment policy occasioned a severe reduction in the national Indian land estate without any benefit to the affected Indians and tribes including the vaunted goals of assimilation and the reduction of poverty in Indian country. The extensive loss of land produced much economic hardship, cultural strain, and erosion of tribal governing authority.
The subsequent attempt of IRA law and policy to reverse this process of severe land loss raises significant questions about the ability of law, and Indian policy in particular, to repair history without creating new conflict that reprises, even deepens, old animosities. This article will survey and analyze this process from both a policy and empirical point of view. In addition, this piece will review the nitty-gritty administrative procedures for putting land into trust, the various procedural challenges to this process, as well as substantive legal challenges to the validity of the land-into-trust portions of the IRA, especially in the state of South Dakota. Finally, the article will tally the empirical results to date, and conclude by examining non-litigation strategies and solutions with an eye on their ability to meet the needs of all concerned.
HIGHLY recommended.
Justice Harlan’s Multicultural Theory of the Commerce Clause?
Law scholars have recently published the text of Justice John Marshall Harlan’s lectures on constitutional law.
An excerpt, of course related to Indians:
Our relations with the Indians in this country are of a peculiar character. Here is the power given to Congress to regulate commerce with the Indian tribes. The Indian tribes are a peculiar people, and our relations with them are peculiar. We sometimes have made treaties with the Indians, but our making treaties with them does not stand exactly upon the footing of our treaties with foreign nations. We have been in the habit, since the foundation of the government, of making treaties with the Indians, and then when we wanted another treaty, compelled them to make another. If we want a treaty modified, why the chiefs are brought here, and broadcloth clothes put on them, and they are shown all the sights around Washington, and we get out of them such a treaty as we want. They are the wards of the nation, not citizens of the United States. They are dependent upon us. They are mere wards, but the men who framed the Constitution knew what infinite trouble there would be if the subject of our relations with the Indians were not put in Congress, but left with the states.
Therefore, the Congress of the United States may say exactly what may go to the Indians, and what may not. Congress may say that no spirituous liquors may be carried into the Indian nations. Congress may prescribe the rule by which you are to be governed in your trading with them. Congress may say, you shall not trade with this tribe at all, or if you do trade with it, it shall be under certain circumstances, and it was necessary to put it there because no state had exclusive interests or control over the Indians. They were scattered throughout the country, and it would never have done at all, as bad as has been the conduct of the United States towards that dying race, to have left it to the states. The states would have dealt with them in a way that might have shocked humanity, as some of them did, and although they have been fairly well treated in their general control by the United States, it is a race that is disappearing, and probably within the lifetime of some that are now hearing me there will be very few in this country. In a hundred years, you will probably not find one anywhere, so that clause of the Constitution about regulating commerce with the Indian tribes will amount to nothing.
A very robust defense of Congressional plenary power over Indian affairs, along the lines the Court was going in United States v. Kagama. But the next paragraph is interesting:
That is not the only race that is disappearing. I may digress this far, and I only do so for the purpose of indicating the immense reach of this commerce power after awhile. To my mind, to my apprehension, it is as certain as fate that in the course of time there will be nobody on this North American continent but Anglo-Saxons. All other races are steadily going to the wall. They are diminishing every year, and when this country comes to have, as it will before a great many years, two or three hundred million of people, when states that are now sparsely populated become thickly populated, we will then appreciate, or the country will then appreciate more than it does now, the immense importance of the common government of the whole country having power to protect trade between the states and with foreign nations, beyond the power of any state for its selfish purposes to harass it.
Pages 132-33.
Hmmm. So if the non-whites will all die off, then the 300 million people of the United States (virtually all white) will really need the commerce clause and the national power that comes with it. Ok, so what does that say about a nation of 300 million where whites are soon going to be in the minority? Would Justice Harlan say national power is more or less necessary to govern in that circumstance? It seems to me that the national power to regulate Indian affairs remains viable and important so long as there are Indian nations. It turned out that Justice Harlan was wrong, as so many were in the 19th and early 20th centuries, that the vanishing race would vanish.
Interestingly, Justice Harlan appears to regret his dissent in Elk v. Wilkins (or maybe just saying that as a dissenter, he was inherently wrong by virtue of the vote):
Judge, does that include Indians?
No. The case of Elk against Wilkins—I wish I knew the volume—they were considered an exception.488 You will find a very learned opinion there by the majority of the Court. It was the case of an Indian who had left his tribe and came into the state of Nebraska, intending to become a part of that people, and the majority of the Court thought that he could not become a citizen of the United States. That case was apart from this Amendment. They were wards of the nation, and they thought he could not become a citizen of the United States. I had the misfortune to differ from the Court upon that question, and of course I was wrong.
Pages 266-67.
UNM Symposium on United States v. Sandoval
Here is the notice:
UNM symposium on United States v Sandoval
The description:
On October 20, 1913, the United States Supreme Court issued its decision in United States v. Sandoval, a case that addressed whether Congress could prohibit the introduction of intoxicating liquor into Santa Clara Pueblo lands notwithstanding the admission of New Mexico to statehood. The Court validated Congress’s power by virtue of the “Indian” status of the Pueblo people and their homelands, establishing an immensely important precedent asserting broad federal authority in Indian affairs generally. This symposium highlights three themes tied to Sandoval ’s legacy: Federal Authority in Indian Country, Indian Identity and Status, and the Rights of Defendants in Tribal Court. An additional related theme, Liquor in Indian Country, will be explored in the associated conference for tribal public defenders and Indian law clinicians, which will interweave with the symposium. This symposium is the third in a series of anniversary symposia commemorating landmark Indian law cases and legislation.
Intersections of the ICWA and Reproductive Freedom Movement
Here.
An article on an intersectional analysis about the Baby Veronica case from Coya White Hat-Artichoker, a Queer Native Woman who is a Social Justice & Reproductive Justice Advocate – who was also adopted.
Tonasket v. Sargent Cert Stage Reply Brief
Pro Se ICWA Cert Petition Filed with Supreme Court
The case is captioned James L. v. Devin H.
Petition here.
Docket here.
We will post the entire petition once we get it.
Questions presented:
The Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901-63 applies, with two express exceptions, “In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved”. Despite that fact, many state courts of last resort, and countless state appellate courts in this country have been called upon, year after year, throughout the 35 year history of the Act, to decide a single question of Federal law. That question has involved hundreds of custody disputes to date and a significant number of Indian children each and every year. It is one of the most important questions which this Honorable Court will ever decide regarding the ICWA, and one which all Indian children, families, and tribes have needed a conclusive answer from this Court on for the past 35 years:
(1) Does the Indian Child Welfare Act apply to an involuntary child custody proceeding involving an Indian child, between biological parents and a third party non-parent?
As a separate issue, Petitioner also presents the following question:
(2) Does awarding conservatorship of a child to a third-party non-parent, over the objections of a biological parent and without a finding of parental unfitness, unconstitutionally infringe upon “the interest of parents in the care, custody and control of their children”?
SCOTUSBlog Profile of Supreme Court Specialists Appointed to the Federal Bench
Interesting read, here. Profiling the Chief Justice, Sri Srinivasan, Patricia Millett, and Nina Pillard.
Fletcher Interview in Prawfsblawg about being Cited by Supreme Court in Adoptive Couple
Doesn’t get any more meta than this.
Here.
Turtle Talk 
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