Today, I will reluctantly present the final round of the Turtle Talk Greatest Cases Tournament. I am reluctant because it mostly was fun to do this, and I don’t really want it to end. So I’ll keep doing them. They’re fun, and most everyone likes them.
Final Round Match-up
(1) Worcester v. Georgia versus (7) Williams v. Lee
I’ve been characterizing these two cases lately as old-timey sovereignty versus somewhat younger old-timey sovereignty. Here’s part of what I wrote about Worcesterwhen I wrote about what I do when I teach the case:
[I]n the 1832 Term, the Marshall Court voted 5-1 to declare unconstitutional the laws of Georgia purporting to invalidate the entire Cherokee Nation in Worcester v. Georgia. Though Chief Justice Marshall’s wife Polly had passed during the previous recess and his health wavered, he delivered an opinion one commentator declared as “one of the most powerful he ever delivered.” Justice Story wrote to his wife, “Thanks be to God, . . . the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights.”
Here’s what I wrote about Williams recently in an unpublished paper:
In 1959, however, the Supreme Court decided Williams v. Lee, a fairly dramatic decision roundly affirming inherent, and exclusive, tribal authority to adjudicate civil disputes arising in Indian country involving reservation Indians (as defendants). Williams recognized that Congress intended the IRA to be a vehicle for the development of tribal justice systems. The Court also noted that the tribal justice system at issue, the Navajo judiciary, was exemplary: “The Tribe itself has in recent years greatly improved its legal system through increased expenditures and better-trained personnel. Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants.”
Enough about me. Here’s the poll. We’ll go two days instead of one.
Now we’re down to the final four cases. Because of the strange and arbitrary way I did the seeding (the older the case, the higher the seed), some incredibly important cases never made it to the second or third rounds. But the greatest cases have a way of surviving. Let’s take a look at the tournament results overall so far (I’m not proficient enough to make brackets on this crappy blog interface, so sorry — just imagine the little lines…).
(1) Worcester v. Georgia defeats (32) Salazar v. Ramah Navajo Chapter — 139 to 9 votes
(16) Santa Clara Pueblo v. Martinez defeats (17) Washington v. Fishing Vessel Assn. — 87 to 57
(8) Arizona v. California I defeats (25) Iowa Mutual v. LaPlante — 80 to 62
(9) Menominee Tribe v. United States defeats (24) Oneida County v. Oneida Indian Nation — 104-35
(4) Talton v. Mayes defeats (29) Kiowa Tribe v. Manufacturing Technologies — 61 to 49
(20) Merrion v. Jicarilla Apache defeats (13) United States v. Mazurie — 94 to 7
(5) United States v. Winans defeats (28) Oklahoma Tax Commission v. Sac & Fox Nation — 54 to 44
(12) Morton v. Mancari defeats (21) New Mexico v. Mescalero Apache — 68 to 36
(3) Ex parte Crow Dog defeats (30) United States v. Lara — 65 to 47
(14) Bryan v. Itasca County defeats (19) United States v. Sioux Nation — 60 to 58
(6) Winters v. United States defeats (27) Miss. Band of Choctaw Indians v. Holyfield — 82 to 34
(11) McClanahan v. Arizona State Tax Commission v. (22) United States v. Mitchell II — 93 to 29
(2) The Kansas Indians defeats (31) Cherokee Nation v. Leavitt — 61 to 21
(15) United States v. Wheeler defeats (18) White Mountain Apache Tribe v. Bracker — 57 to 32
(7) Williams v. Lee defeats (26) California v. Cabazon Band — 68 to 23
(23) Solem v. Bartlett defeats (10) Choctaw Nation v. Oklahoma — 41 to 40 (Ken Akini broke tie)
(1)Worcester v. Georgia defeats (16) Santa Clara Pueblo v. Martinez — 56 to 42
(9) Menominee Tribe v. United States defeats (8) Arizona v. California I — 47 to 44
(20) Merrion v. Jicarilla Apache defeats (4) Talton v. Mayes — 75 to 16
(12) Morton v. Mancari defeats (5) United States v. Winans — 61 to 34
(3) Ex parte Crow Dog defeats (14) Bryan v. Itasca County — 59 to 22
(6) Winters v. United States defeats (11) McClanahan v. Arizona State Tax Commission — 69 to 15
(15) United States v. Wheeler defeats (2) The Kansas Indians — 43 to 33
(7) Williams v. Lee defeats (23) Solem v. Bartlett — 70 to 10
(1) Worcester v. Georgia defeats (9) Menominee Tribe — 69 to 18
(20) Merrion v. Jicarilla Apache defeats (12) Morton v. Mancari — 55 to 33
(6) Winters v. United States defeats (3) Ex parte Crow Dog — 57 to 32
(7) Williams v. Lee defeats (15) United States v. Wheeler — 63 to 21
And that brings us to the semis:
Semifinal # 1
(1) Worcester v. Georgia versus (20) Merrion v. Jicarilla Apache Tribe
When we get down to these last few cases, I start to think — what could we as tribal advocates do without? I’m thinking with the rule in Worcester, now nothing more than a platonic backdrop of tribal authority that depends more on Congressional acts and treaties than on inherent authority, that we’ve done without Worcester in its purest form since 1835, when the Court totally ignored it in Mitchel v. United States. Could we do with0ut the power to tax and exclude, the Merrion holding? I think not.
Semifinal # 2
(6) Winters v. United States v. (7) Williams v. Lee
Charles Wilkinson famously called Williams the beginning of the modern era of federal Indian law. Williams resurrected whatever was left of Worcester and made it viable for the 20th century. Williams legitimized tribal courts (well, the idea of them anyway). Winters is water. Here in Michigan, I’d take Williams every day of the week. We have water here. Maybe in the west it’s a different story.
Here you go. None of them were very close, but none were huge blow-outs, either.
(1) Worcester v. Georgia defeats (9) Menominee Tribe v. United States — 79 to 21 percent
Worcester, the king of the olden era of federal Indian law, continues its domination. Long live Menominee Tribe, which goes down, but still stands (in my mind) for the proposition that Indian tribes are timeless entities that cannot be destroyed merely through enactments of pieces of paper.
(20) Merrion v. Jicarilla Apache defeats (12) Morton v. Mancari — 63 to 37 percent
Practical sovereignty continues strongly, defeating Mancari‘s Indian preference in BIA employment, which somehow has morphed into a much bigger thing. An important thing, whatever it is.
(6) Winters v. United States defeats (3) Ex parte Crow Dog — 64 to 36 percent
Water rights (and really the last true treaty rights case, although I suppose you can make an argument for Worcester) beats out Crow Dog‘s limitation on federal power absent Congressional intervention (although some have made the case for Crow Dog as a treaty case, too).
(7) Williams v. Lee defeats (15) United States v. Wheeler — 75 to 25 percent
Williams, the standard-bearer for modern sovereignty, beats out Wheeler, a much more recent statement of tribal sovereignty. Dare I say it — the next round is anti-climatic, and we’re just waiting for a Worcester-Williams showdown next week?
We’re down to the final eight. Here are the match-ups:
(1) Worcester v. Georgia versus (9) Menominee Tribe of Indians v. United States
Menominee Tribe has made an amazing Cinderella run, and remains one of my personal favorites, despite its peculiar drafting by the quick and dirty pen of Justice Douglas. How can Menominee get past Worcester? Well, I think there’s an argument. Worcester is foundational, to be sure, but almost archaic. The Supreme Court in the early 1970s called it “platonic.” It’s been supplanted by modern cases, the ones starting in 1978 or so. No one cites it anymore. But then again, no one cites Menominee either.
(20) Merrion v. Jicarilla Apache Tribe versus (12) Morton v. Mancari
I think Merrion is the stronger precedent, but Mancari has the emotional backing. This will be a toughie. Both have eliminated older precedents, and so their resilience cannot be questioned (actually, it can, and I question Mancari‘s resilience). Good match-up.
(3) Ex parte Kan-Gi-Shun-Ca (Crow Dog) versus (6) Winters v. United States
Two of the oldest remaining cases left, slugging it out. Water rights versus … what does Crow Dog stand for again?
(15) United States v. Wheeler versus (7) Williams v. Lee
Williams has been a wrecking ball through this tournament, already eliminating Cabazon Band and Solem. Wheeler is tough, though, too. However, it hasn’t faced the same competition (Bracker and The Kansas Indians).
(3) Ex parte Kan-Gi-Shun-Ca (Crow Dog) (109US556) vs. (14) Bryan v. Itasca County (426US373)
This is a good match-up, with the principles of both cases blending nicely, as one careful commentator observed, to preserve tribal authority to prosecute even in PL280 states. My guess is Crow Dog wins out, if for no other reason that it is older. And no one’s yet written a book about Bryan, as they have with Crow Dog, although it does make a cameo in David Treuer’s new one.
(16) Winters v. United States vs. (11) McClanahan v. Arizona State Tax Commission
Another match-up pitting treaty rights against tax immunity. Tough one. I bet out loud people would say they’d go to the mat over treaty rights than taxes, but in a blind polling situation, true colors shine. I’d say the taxes win this one, even though water rights are irreplaceable. On the other hand there was that symposium dedicated to Winters rights back in 2008.
(2) The Kansas Indians vs. (15) United States v. Wheeler
Well, this one pits taxes against criminal jurisdiction. A real tough match-up. Both are about inherent sovereignty, but Kansas Indians is more on point. We like to think Wheeler affirms tribal authority to prosecute, and it does but only indirectly (the case held that the feds could prosecute someone who had already been prosecuted by an Indian tribe, like United States v. Lara). A toss-up.
(7) Williams v. Lee vs. (23) Solem v. Bartlett
This one may be the biggest mismatch of the Round of 16. Williams is a juggernaut (and a good bet to win the whole thing), and Solem got past the first round only through the courage of our ILPC Fellow, who picked it in a tie-breaker.
Here are the results in the first half of the Round of 16.
(1) Worcester v. Georgia defeats (16) Santa Clara Pueblo v. Martinez — 57 percent to 43 percent
This one was a true slugfest. Platonic sovereignty wins out over modern sovereignty.
(9) Menominee Tribe v. United States defeats (8) Arizona v. California — 52 percent to 48 percent
Menominee Tribe continues its miraculous run of extremely tight victories. Must be because, in this instance, there are still animals to hunt and fish to catch in Wisconsin, and all the Colorado River water goes to L.A. and Phoenix.
(20) Merrion v. Jicarilla Apache Tribe defeats (4) Talton v. Mayes — 82 percent to 18 percent
Merrion flexes its muscles, and is the first to knock off one of the four 19th century cases. Go taxation power!
(12) Morton v. Mancari defeats (5) United States v. Winans — 64 percent to 36 percent
The BIA and IHS workers must have voted this time around to save Mancari. Another treaty case bites the dust early.
We’ve moved on to the next pairings in the Round of 16 (or octofinals or whatever). Here is the first set of pairings (vote before 1 PM eastern/10AM pacific Tuesday):
(1) Worcester v. Georgia (31US515) vs. (16) Santa Clara Pueblo v. Martinez (436US49)
These two cases are big time heavy hitters. Worcester mopped the floor in the first round with Ramah Navajo Chapter, and Martinez eeked out a close one with Fishing Vessel. So far, this tournament has rewarded older cases far more than recent cases. In fact, the most recent remaining case is from 1984. But Martinez is one of the greatest. I imagine will be close. As if it matters, but Worcester has been cited 812 times in court cases, and Martinez in 1095 cases.
(8) Arizona v. California (373US546) vs. (9) Menominee Tribe v. United States (391US404)
Arizona barely got past Iowa Mutual in the last round, and now faces Menominee Tribe, a fan favorite (I am that fan), which wiped out Onieda II last time out. These are both treaty rights cases, so in a sense, there’s a decent comparison. Which one impresses people more? Hunting and fishing, or water?
(4) Talton v. Mayes (163US376) vs. (20) Merrion v. Jicarilla Apache Nation (455US130)
Talton barely sneaked past Kiowa Tribe in the opening round, while Merrion won over Mazurie in one of the biggest landslides in the tournament so far. I think of Talton as being one of those cases that sounds good to law students, but ends up being the reason tribal interests lose cases like Plains Commerce Bank. Merrion is a core sovereignty case. Which impresses observers more? Sovereignty as a defense, or sovereignty as governance.
Winans slipped past Sac & Fox last round in of the closer match-ups. Does anyone even remember what it stands for, or is it that so many Oklahomans are voting? Winans will face a tough test in Mancari, the case that persuaded tribal interests to argue that if it helps Indians it’s political, and if it hurts them, it’s racism.