United States v. Navajo Nation

Green Bag Highlights Two Key Indian Law Opinions in 2009’s Exemplary Writing

Matthew L.M. Fletcher

Here is the Green Bag’s announcement, which includes Judge Kozinski’s dissent in United States v. Cruz, and Justice Souter’s concurrence in United States v. Navajo Nation.

We’ve highlighted Judge Kozinski’s dissent in the context of the interesting question about whether a jury (of usually entirely non-Indians, see Dean Washburn’s scholarship) can really make a determination using a series of common law factors that someone is an Indian beyond a reasonable doubt. Most Indians have doubts about other Indians all the time. In Cruz, the court held that an Indian with 22 percent Indian blood was not an Indian. A short time later, in another case we highlighted — United States v. Stymiest, the court held that an Indian with less Indian blood than Cruz was an Indian.

The inclusion of Justice Souter’s concurrence seems to be a but pithy on the part of the Green Bag selection committee. Here it is, in the entirety:

I am not through regretting that my position in United States v. Navajo Nation, 537 U. S. 488, 514–521 (2003) (dissenting opinion), did not carry the day. But it did not, and I agree that the precedent of that case calls for the result reached here. Continue reading →

Review of OT 2008: Indian Law Cases in the Supreme Court

Matthew L.M. Fletcher3 Comments

It’s time for a review of what the Supreme Court did in Indian law this Term, since the Term will end in a few weeks.

Consistent with the last 15 years or so (maybe 20), the Court was very hostile to tribal interests. The Roberts Court’s view of Indian law has changed slightly from the Rehnquist Court; frankly, for tribal interests, to the worse. All of the Indian law cases decided by the Court this Term could be construed as “error correction,” cases in which the Court (usually unanimously) believed the lower court made an egregious error. This appears to be a trend in the recent years, in which the Roberts Court will only grant certiorari in cases to correct these egregious errors. The Court does not see Indian law as a dynamic area of law — Indian law cases are very easy for most of the Justices — nor are Indian law cases vehicles for examining important issues of constitutional law beyond federal Indian law.

For the Roberts Court, Indian law cases are easy for a couple reasons. First, state government interests always trump tribal interests, and every case in which tribes defeat states strongly attracts the attention of the Court. The reverse simply is not true. It is my sense that the Roberts Court is happy to rest on the fact that state sovereignty is strongly protected by the text of the Constitution, and tribal sovereignty is not. Second, the long, complicated, and important history of federal Indian law and policy is utterly unimportant to the Roberts Court. Longstanding practice, legislative history, and simple Indian affairs history does nothing to persuade a majority of the Court, with only Justice Stevens paying much attention to it.

The Court heard oral argument and issued opinions in two Indian law cases, and a third case involving Native Hawaiians.

Continue reading →

Navajo Nation Commentary

Matthew L.M. Fletcher5 Comments

The outcome in Navajo Nation was expected and a bit old news by now. Maybe it’s time for a retrospective on tribal suits against the United States, and their possible impact on federal Indian law, especially the trust relationship. Is it possible that the upswing of tribal money claims against the United States have somehow indirectly undermined some of the key foundations of federal Indian law? It may be.

We know that from 1959 to 1987 or so, tribal interests won about 59 percent of their cases in the Supreme Court. That trend has reversed dramatically since then, dropping to about 25 percent since 1987. Some of the interesting hallmarks of those successful cases in the 1960s and 1970s was the successful assertion of a federal government interest.

Continue reading →

Supreme Court Rules Against Navajo Nation

Matthew L.M. Fletcher

Here is the opinion from Justice Scalia. No dissent.

Comments on the Wolfchild Case

Matthew L.M. Fletcher12 Comments

There’s no reason to take a position on the Federal Circuit’s decision reversing the trial court in the Wolfchild case, but there are several big-picture issues that may have affected the Circuit’s decision or otherwise demonstrate that something is horribly wrong in federal Indian law.

First, the lawyer’s history propounded by the trial court, the Federal Circuit, and necessarily the parties is troubling. Let us not forget, as it would be very easy to do from the Federal Circuit’s opinion, that this whole thing started with the violent and illegal acts of the United States government. It was the United States’ actions that precipitated the so-called “rebellion” of the Dakota people near Fort Snelling. And it was the local non-Indian populace, the Army, and President Lincoln that characterized the “rebellion” as a series of “massacres.” The people called the “Loyal Mdewakanton” and the people, predominantly plaintiffs, that were not so “loyal” were all part of this community utterly ravaged by the United States. The end of this war in 1862 resulted in the largest mass execution of anyone in American history — about 40 men and boys, all Dakota. And the majority of Dakota people in the area were rounded up and sent on a death march that included at least three or four states, killing many, many people.

None of that is relevant to this case, apparently. But it really should be.

Continue reading →

Commentary on the Navajo Nation Oral Argument

Matthew L.M. Fletcher1 Comment

As could be predicted, the oral argument in United States v. Navajo Nation (transcript) did not go very well for the respondents. Adam Liptak noted that Justice Ginsburg showed unusual vigor in suggesting to Carter Phillips that her 2003 majority opinion in Navajo Nation I foreclosed any chance for a monetary award, implying that the first decision covered any possible relevant openings for the Nation.

And that’s how Acting SG Ed Kneedler opened, by arguing that the questions presented in Navajo I included all possible statutes that could generate an award-generating cause of action for the Nation. Before the Acting SG concluded his opening portion of the argument, Justice Ginsburg on page 18 was asking Mr. Kneedler the proper course of action once the Court rules in favor of the government. See Transcript page 18, lines 4-7. Kneedler suggested a reversal and a dismissal of the complaint below. No more remands, something perhaps the Court forgot to do before.

Continue reading →

NYTs on Justice Ginsburg’s Participation in the Navajo Nation Oral Argument

Matthew L.M. Fletcher

From NYTs:

WASHINGTON — Justice Ruth Bader Ginsburg, who underwent surgery for pancreatic cancer less than three weeks ago, was back on the Supreme Court bench on Monday, asking crisp and vigorous questions in the two arguments heard by the court.

Justice Ginsburg seemed to take particular interest in a case brought by the Navajo Nation claiming that the federal government had been complicit in a scheme to allow a private company to underpay for coal on tribal lands.

The case, United States v. Navajo Nation, No. 07-1410, was making its second appearance before the court. Justice Ginsburg wrote the majority opinion ruling against the tribe in 2003, and she asked forceful questions suggesting that she saw no reason to revisit her conclusions.

Carter G. Phillips, the tribe’s lawyer, was just starting his argument when Justice Ginsburg asked the first question. Quoting broad language from her original decision, she suggested that it covered the newer case, too.

“Do you think that was just carelessness on the court’s part?” she asked of the expansive language she had used, including the phrase “any relevant statute or regulation.”

“Oh, I would never assume that, Justice Ginsburg,” Mr. Phillips said in a light tone. Justice Ginsburg reacted with a broad smile.

A few minutes later, she quoted a second passage along similar lines, and Mr. Phillips again deferred to her. “Obviously, Justice Ginsburg, you are in a much better position to judge what was intended here,” he said, before going on to say that this case involved a different federal statute than the 2003 one.

Continue reading →

U.S. v. Navajo Nation Oral Argument Transcript

Matthew L.M. Fletcher

Available here.

NYTs Editorial Supporting Navajos

Matthew L.M. Fletcher

From the NYTs:

The federal government has a long history of cheating American Indians, and not all of this dirty dealing is in the distant past. On Monday, the Supreme Court hears arguments in a suit by the Navajo, who lost millions of dollars’ worth of coal royalties because the government helped a coal company underpay for their coal. A lower court ruled for the Navajo Nation. The Supreme Court should affirm that well-reasoned decision.

The Navajo’s huge reservation spreads across parts of Arizona, New Mexico and Utah. The United States holds the lands in trust and manages their large coal deposits. Peabody Coal had a lease to mine on that land. The terms provided that in 1984, the interior secretary could make a reasonable adjustment in the royalty rates paid to the tribe.

Continue reading →

Andrew Cohen’s CourtWatch and “Factbound and Splitless”

Matthew L.M. Fletcher3 Comments

From CBS News (download the paper here) (How Appealing and Indianz):

Bury My Chance at Supreme Court

Andrew Cohen: Study Shows Indian Tribes Face Long Odds In “Cert Pool” Process at High Court

This coming Monday, the United States Supreme Court will hear oral argument in a case involving the coal royalty rights of the Navajo Nation. It will be the second time the Justices have involved themselves in the dispute. The first time, in 2003, the Court sided with the government, that is to say the Interior Department, which at the request of an energy corporation had blocked a royalty increase to the Nation.

The case was then sent back down to the Federal Circuit Court for a new look. In 2007, that lower appeals court again sided with the Navajo people, ruling that the government had breached its fiduciary duty to the Nation. The Bush Administration again appealed, arguing that a ruling in favor of the tribe would “encourage the filing” of other claims against the Interior Department. And, last fall, the Supreme Court yet again expressed through its certiorari process (the means by which the Court typically agrees to accept certain cases and reject others) a willingness to step in and save the feds in their fight against the tribe.

While the merits of the case are complex, it is a virtual certainty that the Court’s majority will once again reject the claims of the Navajos. That alone might be cause for some serious discussion about the relationship between the Court and American Indians. But thanks to an important study by Michigan State University Law Professor Matthew L.M. Fletcher we now know that there may be a problem that goes way beyond this single case.

Fletcher’s trenchant study, entitled “Factbound and Splitless,” concludes that the “Supreme Court’s certiorari process is a barrier to justice for parties like Indian tribes and individual Indians. Statistically,” he writes, “there is a zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in more than a quarter of petitions filed by the traditional opponents to tribal sovereignty.” A 25 percent acceptance rate for any category of cert petitions is remarkably high in any circumstance-especially when compared with the number of, say, death penalty appeals that are accepted each term.
Continue reading →