United States v. Jicarilla Apache Nation

On Justice Sotomayor’s Judicial Philosophy

Matthew L.M. Fletcher

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.

Sam Deloria on Indian Law in the Supreme Court

Matthew L.M. Fletcher1 Comment

Here. The first part of this article is coverage of the American Indian Law Center’s “First Thirteen” event. Sam’s commentary is below:

But the judges are not so clearly divided pro and con Indian cases either, as is seen in the recent Jicarilla 8-1 vote, which resulted in protection of privileged communications between trust administrators and the government, so it could be a long wait. And long-time Indian policy analyst Sam Deloria (Standing Rock Sioux), is not content to wait, and argues for a new approach.

Deloria, who currently heads the American Indian Graduate Center and served as director of the American Indian Law Center since the 1970s, shepherding many future attorneys through the Pre-Law Summer Institute, declared, “It’s not going to do us any good to keep constantly complaining that they’re not accepting our arguments. And, I think it would make much better sense to think very deeply about what it is that seems to be troubling them, and I think what troubles them is, what we want.

“It’s not that they don’t understand Indian law, it’s that the version of Indian law that we keep urging on them unsuccessfully, they don’t buy it. And one of the reasons they don’t buy it is they don’t see clearly what the outlines are of tribal powers that we’re talking about and because they’re afraid of what lawyers call ‘the slippery slope’– that if they let these guys do this, then what’s next?

“They’re very skeptical about going along with tribal claims because they just don’t understand what it is we’re talking about – I’d think we’d be much better off trying to depict to the court a workable set of governmental relationships that include tribal, state and federal and how that actually would work in practice—they don’t know the situation of tribal governments on the ground and so, they have misgivings. Well, let’s find out what their misgivings are, and address those, instead of just coming back every time quoting cases from the 1830s, or cases from the 1950’s and early 60’s, let’s go back and see what their problem is and try to address their problem.”

Continue reading →

Flap over the SG’s Briefs (Indian Country Implications? Nah.)

Matthew L.M. Fletcher1 Comment

Here, from SCOTUSblog is a description of the issue:

In a ruling that the Justice Department is seeking to delay while it appeals, a federal judge has concluded that the federal government’s lawyers in the Supreme Court may have misled the Justices three years ago in efforts to win a key case on the rights of non-citizens facing deportation from the U.S.   The New York judge rejected all of the government’s arguments for refusing to disclose significant parts of four pages of e-mail exchanges within the Solicitor General’s office about a policy claim they had made in the government’s brief in the Supreme Court case ofNken v. Holder, decided nearly three years ago.  The new ruling by U.S. District Judge Jed S. Rakoff of New York City can be found here.

We here in the ILPC suite wondered whether this would be a big deal in an Indian law case. [We’re betting the Jicarilla attorneys have a view on this, though that case didn’t involve the SG so much.] But we are reminded by the SG’s lodging of documents in the Carcieri case that helped to form the heart of Justice Thomas’s majority opinion:

Furthermore, the Secretary’s current interpretation is at odds with the Executive Branch’s construction of this provision at the time of enactment. In correspondence with those who would assist him in implementing the IRA, the Commissioner of Indian Affairs, John Collier, explained that:

“Section 19 of the Indian Reorganization Act of June 18, 1934 (48 Stat. L., 988), provides, in effect, that the term ‘Indian’ as used therein shall include—(1) all persons of Indian descent who are members of any recognized tribe that was under Federal jurisdiction at the date of the Act … .” Letter from John Collier, Commissioner, to Superintendents (Mar. 7, 1936), Lodging of Respondents (emphasis added).

Of course, there’s a big difference between what Judge Rakoff found and this, to be sure. Moreover, we’re pretty sure all the parties were aware of this document or similar documents long before the SG lodged John Collier’s letter with the Court. In fact, this is probably an instance where the SG was being completely honest. But still! Man! C’mon!

 

Federal Court Denies DOJ Effort to Withhold Docs from FOIA Request under Jicarilla

Matthew L.M. Fletcher

Interesting case, in which the court rejected DOJ’s argument that it didn’t have to disclose inter-agency memos (here, between two departments in ENRD) because the agencies were in conflict. It may have ramifications, if it holds up, for post-Jicarilla trust cases if, for example, Justice and Interior (or Interior and NLRB) have opposing interests.

Here are the materials in Menasha Corp. v. DOJ (E.D. Wis.):

DCT Order Denying DOJ Motion

DOJ Motion for Summary J

Menasha Opposition

DOJ Reply

An excerpt from the opinion:

This case arises under the Freedom of Information Act (FOIA), 5 U . S.C. § 522. Plaintiffs Menasha Corporation (Menasha) and Neenah–Menasha Sewerage Commission (NMSC) allege that the Defendant, the United States Department of Justice (DOJ), refused to provide records responsive to an administrative FOIA request (submitted to the DOJ on December 17, 2010). Presently before the Court is Defendant’s motion for summary judgment which raises the question of whether lawyers at the DOJ who represent separate client agencies with adverse interests in the same litigation can share confidential information with each other without waiving attorney-client privilege, work product privilege, and the deliberative process privilege. The Court concludes that the answer is no, and therefore denies Defendant’s motion for summary judgment and orders the requested information produced.

Slate on Justice Sotomayor’s “Lonely” Dissent in Jicarilla Apache Nation

Matthew L.M. Fletcher1 Comment

Here.

An excerpt:

Sotomayor focused her dissent on the uncomfortable public policy implication of the majority opinion, namely, that the government could have legitimate reasons for managing the trust beyond, or perhaps even contrary to, the interests of the tribe without the obligation to turn over the evidence that proves it.  But the majority didn’t flinch. “Congress has structured the trust relationship to reflect its considered judgment about how the Indians ought to be government,” Alito affirmed, “[I]t has been altered and administered as an instrument of federal policy.”

Forget ducks. For Sotomayor, this doesn’t even pass the smell test. The government acts as a trustee and calls itself a trustee, but it won’t abide by any of the traditional duties that go with being a trustee unless it affirmatively accepts them. In effect, the government is using the word trust without feeling obliged by its definition. “There’s no need to use the word,” Sotomayor tartly noted in oral arguments, “because it wouldn’t be a trust.”

The problem for Sotomayor is that the government can be a trustee, but it can’t only be a trustee, and the dual nature of its relationship undermines the trust law exception to attorney-client privilege. Her response is to say that the interests of the trustee and beneficiary should always be aligned; that justice cannot tolerate the casual discharge of a sacred trust, particularly one owed by the federal government to a vulnerable group of people. “Given the history of governmental mismanagement of Indian trust funds,” she says in her dissent, the “application of the fiduciary exception is, if anything, even more important in this context than in the private trustee context.” Maybe so, but that is a moral reply to a legal conundrum. As a matter of law, Sotomayor would have been better off joining Ginsburg’s concurrence, which tried to provide a single exception to the traditional trust relationship. That she did not says a lot about the jurisprudential prerogatives of one of the newest members of the Court.

Jurisprudential prerogatives, and the moral imperatives that underpin them, are the stuff of lonely dissents, which tend to be less about the law than its shortcomings. They are written accounts of a judge’s reckoning with the oldest dilemma of her profession: that what is legal is not necessarily just, and what is just is not necessarily legal. As Sotomayor attests, they can be telling in their despair.

Government Reply Brief in United States v. Ray Motion for Reconsideration

Matthew L.M. Fletcher

Here:

US Reply in Ray

Well, the government tempered its complaint about having to go to the federal court by citing the government’s trust duties under United States v. Jicarilla Apache Nation. Seems to be an enormous amount of confusion. Jicarilla is a backdoor repudiation of the trust relationship, not the strong directive to protect tribal property. Whatever.

Earlier materials are here.

California Indian Law Association 2011 Annual Conference Agenda (Oct. 13, 2011)

Matthew L.M. Fletcher

Here:

2011-08-08 CILA conference agenda final

Justice Thomas’ Indian Law Vision

Matthew L.M. Fletcher7 Comments

Much is being made of Justice Thomas as a rising leader in the Roberts Court, which quietly says a great deal about the incredible conservatism of the Court right now. Justice Thomas views on gun control, which former Chief Justice Burger would have labeled “fraudulent,” are now the law. Jefffrey Toobin’s New Yorker piece, profiled at SBM blog, notes that Thomas’s dissenting and concurring opinions long have espoused well-nigh radical notions of constitutional law, and are now being vindicated one after the other.

Justice Thomas’s radical vision of the law also has touched Indian law. In particular, Thomas has suggested two major changes to Indian law jurisprudence.

First, in White Mountain Apache, he wrote that the trust relationship was more properly viewed as a “guardian-ward relationship,” a view adopted to some extent by the Jicarilla Court just a few months ago:

The Court of Claims has observed that the relationship between the United States and Indians is not governed by ordinary trust principles: “The general relationship between the United States and the Indian tribes is not comparable to a private trust relationship. When the source of substantive law intended and recognized only the general, or bare, trust relationship, fiduciary obligations applicable to private trustees are not imposed on the United States. Rather, the general relationship between Indian tribes and [the United States] traditionally has been understood to be in the nature of a guardian-ward relationship. A guardianship is not a trust. The duties of a trustee are more intensive than the duties of some other fiduciaries.” Cherokee Nation of Oklahoma v. United States, 21 Cl.Ct. 565, 573 (1990) (citations and internal quotation marks omitted).

One can only wonder what Justice Thomas would have done if Cobell had fallen into the Court’s lap. Today’s posting on the lower court’s sarcastic rejection of the government’s position on the merits of the Jicarilla trust claim suggests the DOJ and DOI are more than willing to offer up an argument to return the trust relationship to the Lone Wolf v. Hitchcock era.

Second, Justice Thomas has stated an interest in extending his onslaught on the commerce clause to the Indian Commerce Clause context. In United States v. Lara, he linked Lopez and Morrison to the Indian Commerce Clause: Continue reading →

Andrew Cohen on Justice Alito’s Visit to Pine Ridge

Matthew L.M. Fletcher3 Comments

Here is the short article in the Atlantic. Here is the Rapid City Journal news article detailing the visit to Pine Ridge, which came at Judge Karen Schreier’s invitation and included a visit to Red Cloud Indian School. Chi-miigwetch to everyone who sent it along.

Mr. Cohen offered three questions he would have asked Justice Alito at Pine Ridge if he could have gone. One on Arvo Mikkanen’s nomination; one on Justice Sotomayor’s dissent in Jicarilla; and one on Factbound and Splitless. He has previously written on all three issues: The Mikkanen nomination here and here; the Jicarilla case here; and Factbound and Splitless here.

Supreme Court Recap: 2010 Term

Matthew L.M. Fletcher

The Supreme Court’s 2010 Term — for tribal interests — was a flurry of activity, but with little to show for it. In Shakespeare’s words, full of sound and fury but signifying nothing (or almost nothing). Our two previews are here and here. Our previous mid-Term updates are here and here.

The underlying theme of the Term seems to be the aggressive campaign by the Department of Justice to undermine the tribal-federal trust relationship. Of note, the once-prominent and now-discredited Lone Wolf period where the Supreme Court granted free reign to Congress and the Executive branch appears to be recurring, with the Executive branch now enjoying virtually unlimited authority to handle tribal trust property with little or no consultation. Also, for the sixth consecutive Term, and for every Term except 1996, the Court granted zero tribal petitions.

Granted Cases

1. United States v. Tohono O’odham Nation (09-846). Loss.

The Court ruled 7-1 against the Nation (with Justice Kagan recused). Only Justice Ginsburg dissented. The Court then GVR’d a similar case, United States v. Eastern Shawnee. Within a few weeks of the outcome, the government began moving for dismissal of claims around the country, the first apparently being the Goodeagle case.

Oral argument recaps are here and here (from Millett and Meggesto). The oral argument transcript is here.

2. Madison County v. Oneida Indian Nation (10-72). GVR.

This is the big surprise of the Term (and it appears the closest thing to a “win” for tribal interests), with the Supreme Court granting cert on the question whether tribes are immune from foreclosures by counties for failure to pay property taxes, and then the Oneida Indian Nation enacting an ordinance purporting to waive its immunity from such suits. Over the petitioners’ objections, the Court remanded the case back to the Second Circuit for reconsideration in light of Oneida’s waiver.

3. United States v. Jicarilla Apache Nation (10-382). Loss.

Easily the biggest case for tribal interests the Court granted this Term, and the biggest disappointment. The Court ruled 7-1 (with Justice Kagain recused, and Justice Sotomayor dissenting) that common law fiduciary trust law doesn’t apply to Congressionally-created trusts. The outcome here means that It remains to be seen whether other trusts would survive the ruling. The case attracted attention from a national Court observer (Andrew Cohen), who harshly criticized the decision (here).

The oral argument transcript is here.

CVSGs

Continue reading →