You may be waiting for the final match-up in the greatest cases tournament, but wait until next week when I get back from the Frickey thing.
Several Indian tribes in recent years have considered whether to authorize same-sex marriage in their respective lands — Coquille and Suquamish have said yes, while Cherokee, Navajo, and Little Traverse Odawa (!?!?!) have said no. What do you think?
Let’s have some fun. I’ve picked 32 of the greatest cases in federal Indian law (it’s my game, so my opinion on which is the top 32 — basically, I picked winners for tribal interests). I’ve seeded them (by date, how’s that for arbitrary) and placed them into a bracket. Vote for which one you think is the greater case. Use whatever criteria you want (e.g., most influential on tribal governance, most important FIL principle, my tribe won, my client won, whatever).
Let’s start today with the top of the bracket, the 1-32, 16-17, 8-25, and 9-24 matchups. UPDATE: Voting ends at 10:30 AM eastern Thursday, Aug. 30. Results revealed after.
Match-Up Number 1
(1) Worcester v. Georgia (1832) (31US515) — State law can have “no force” in Indian country
v.
(32) Salazar v. Ramah Navajo Chapter (2012) (11-551) — Pay CSC out of Congress’ Judgment Fund
Match-up Number 2
(16) Santa Clara Pueblo v. Martinez (1978) (436US49) — Tribal Immunity from ICRA Claims
v.
(17) Washington v. Fishing Vessel (1979) (443US658) — Affirming Boldt Decision
Match-up Number 3
(8) Arizona v. California (1963) (373US546) — Indian Water Rights to Colorado River
v.
(25) Iowa Mutual v. LaPlante (1987) (480US9) — Tribal Court Exhaustion includes Tribal Appeals Cts.
Match-up Number 4
(9) Menominee Tribe v. United States (1968) (391US404) — Treaty Rights Survived Termination
v.
(24) Oneida County v. Oneida Indian Nation (1985) (470US226) — Non-Intercourse Act Land Claim
The poll was here.
27 percent thought the Ninth Circuit was one of the top 3. Everyone thinks the Ninth Circuit is liberal, but there are several dozen judges, and some of them are downright cranky when it comes to tribal (or environmental) claims. I’d say it’s a crapshoot, and depends heavily on the judges one draws.
24 percent thought the Tenth Circuit was one of the top 3. I’d pick the Tenth Circuit, too, but there’s a very mixed record here. I am persuaded by anecdotal evidence over the years that this court takes Indian law seriously, and that’s all we should ask for.
12.5 percent thought the Federal Circuit was one of the top 3. I’d pick the Federal Circuit for their fairly good record on trust cases, maybe even too good. They have been reversed numerous times by the Supreme Court in the last decade.
The Eighth Circuit garned only 8 percent of the votes. A little bit of a surprise. Ten years ago it would have been closer to the top, I suspect.
The D.C. Circuit also picked up 8 percent. Not sure why. It’s not a court that’s not very patient with tribal claims these days. I wonder how much (or if) the Cobell litigation has much to do with it.
Of course we should take these results for what they are — nothing. Instead, maybe we should look to see how many times a federal circuit has ruled in favor of tribal interests, only to be reversed by the SCT.
It’s been a long time since we had a TT poll, so how about this? What is the best federal appellate circuit for tribal interests? We already know the Eighth, Ninth, and Tenth Circuits get the vast majority of the cases, but other circuits do get them. We’ll let you pick your top three (but we don’t know how to do rankings, so there’s that). Poll ends in 24 hours. Go!
We will publish a top 10 biggest stories in the first week of January (like we did last year), but before we do, here is a sampling of the top stories. What stories do you think are the biggest?
Will the Supreme Court grant cert in Navajo Nation v. United States Forest Service?
The new Solicitor General — Elena Kagan — has until May 8 to file an opposition to the Navajo Nation cert petition. From there, the petitioners can file a reply brief, and the case will head to the Conference, likely in June. Assuming the government opposes the petition, the Court historically is extremely likely to deny cert, especially in a non-criminal case. However, the petitioners have made a credible case that the Ninth Circuit’s en banc opinion — defining “substantial burden” under the Religious Freedom Restoration Act to be far more narrow than any other federal circuit — has created a viable circuit split.
I had the great honor of participating in Profs. Frickey, Berkey, and Williams’ Advanced Indian Law seminar at UC-Berkeley Law School yesterday and we discussed, among other things, which doctrine in federal Indian law is most frustrating to elected tribal officials. So that sounds like a good question to ask for Turtle Talk’s first poll:
What federal Indian law doctrine frustrates tribal government officials the most?
We stopped counting Monday, March 9 (here). You can still vote if you want, but we’re probably not going to come back to this. 🙂
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