Amicus briefs in Indian law: the case of Plains Commerce Bank v. Long Family Land & Cattle Co.

• Author: Pommersheim, Frank

1. INTRODUCTION

   The role of the amicus brief in litigation before the United States Supreme Court has changed significantly over time. This is true with regard to both its function and its increasing prevalence. (1) This is no less the case in the field of Indian law. And while there is a developing body of scholarship relative to amicus practice generally, (2) there is not a single article that deals with amicus briefs in the context of Indian law. This piece intends to open that door and take a look around.

   The primary vehicle for this examination will be a review of the amicus briefs submitted in the case of Plains Commerce Bank v. Long Family Land & Cattle Co. (3) The precise method will involve an investigation of the nature of the arguments made by the various amici parties on both sides, with a focus on both doctrinal and policy matters. There will also be a particularized look at the unique role of the United States as an amicus in Indian law cases, the practice of the states, especially South Dakota, various trade associations, and public interest advocacy groups, with regard to any patterns as to the nature of the arguments made. There will also be an examination of the role of amicus briefs within tribal appellate systems with particular consideration given to the role of the Cheyenne River Sioux Tribe as an amicus before both the Cheyenne River Sioux Tribal Court of Appeals and the United States Supreme Court. Lastly, there will be a more speculative assessment concerning the legal effectiveness and political impact of amicus practice within the field of Indian law, as well as a review of the survey data involving a number of western states.

2. BACKGROUND

   The origin of the amicus curiae (4) can be traced to Roman law, where amicus participants provided the courts with information in areas of law beyond the expertise of the judges. This information was usually in the form of impromptu oral communication or non-binding written opinions. (5) The amicus played the role of a neutral advisor educating the courts and helping the judges avoid erroneous decisions. (6) The amicus was not a litigant in the case, "but served as an impartial assistant to the judiciary, providing advice and information to a mistaken or doubtful court." (7)

   This "neutral" tradition was carried over to England, but began to change in the eighteenth century with a shift from a "neutral" stance to positive advocacy. This practice soon made its way to America, where it would take root and proliferate. (8) The first advocacy amicus participation in American jurisprudence was in the 1823 case of Green v. Biddle. (9)

   In the Green case, the celebrated orator and former legislator Henry Clay appeared before the Supreme Court and argued for rehearing. The essential grounds were his claim that significant legal interests involving many (nonparty) Kentucky landowners were likely to be affected, especially in light of the non-appearance before the Court of the non-prevailing party in the court below. The Court characterized it thusly:

   that it involved the rights and claims of numerous occupants of the land in Kentucky, who had been allowed by the laws of that State, in consequence of the confusion of the land titles, arising out of the vicious system of location under the land law of Virginia, an indemnity for their expenses and labour bestowed upon lands of which they had been bone fidei possessors and improvers, and which were reclaimed by the true owners. He stated, that the rights and interests of those claimants would be irrevocably determined by the decision of the Court, the tenant in present case having permitted it to be brought to a hearing without appearing by his counsel, and without any argument on that side of the question. (10) Clay's role was twofold: advising the Court of the likely collusiveness of the lawsuit because Biddle failed to appear and advocating a substantive position for certain non-party Kentucky landowners. (11)

   The advocacy role of amicus practice continued to expand in American jurisprudence and it soon became dominant. In this early development however, the amicus brief "was used most commonly to protect government interests." (12) For example, in Ball Engineering Co. v. J.G. White & Co.: (13) "The U.S. Solicitor General successfully argued that the contractual seizure of construction company's building materials did not constitute a seizure under the meaning of the Fifth Amendment and therefore fell under tort law, leaving the government free from fiscal liability claims resulting from the seizure." (14)

   This practice soon attracted the attention of private organizations who began to use it in their own quest for policy adjustment or social change within the law. (15) The first instance of this new practice was the case of Ah How (alias Louie Ah How) v. United States. (16) In that case, the Chinese Charitable and Benevolent Association filed an amicus brief supporting the petitioner's attempt to resist deportation by bringing to the Court's attention the abuses of Chinese immigrants by the government. (17)

   This practice has consistently grown and expanded. It has become a vehicle of both liberals and conservatives. Its apogee was likely reached in the University of Michigan admission cases involving the role of racial preference (18) in which more than 100 amicus briefs were filed. Such widespread "activist" practice presumably risks the ire of both the Court and the public at large. However, no such ire has yet become manifest.

   The Court itself controls amicus practice through its promulgation of rules relevant to such activity. Supreme Court Rule 37 (19) controls the practice and sets requirements. Rule 37 requires private amici to obtain the permission of both the parties. Should such permission be denied, application can be made directly to the Court and is routinely granted. Representatives of federal and state governments do not require permission of the parties. (20) Given the nature of the deeply entwined historical and contemporary relationship between the federal government and Indian tribes, the United States Justice Department--as in the Plains Commerce Bank case--often appears as amicus on the side of the tribes, except, of course, when the federal government itself is suing or being sued by the tribe.

   This modern liberality has not always been the case. The Court was extremely cautious about the overtly social and political aspects of amicus practice during the 1940s and 1950s. For example, in 1954 the Court denied all motions for leave to file an amicus brief, but by 1961 it granted 93% of the applications. (21)

   Several justices in the modern era have expressly endorsed amicus practice. Justice Breyer notes that: "[amicus] briefs play an important role in educating the Judges on potentially relevant technical matters, helping make us not experts, but moderately educated lay persons, and that education helps to improve the quality of our decisions." (22) Justice O'Connor concurs with this view by noting that: "The 'friends' who appear today usually file briefs calling our attention to points of law, policy considerations, or other points of view that the parties themselves have not discussed. These amicus briefs invaluably aid our decision-making process and often influence the result or the reasoning of our opinions." (23) No Supreme Court Justice is on record as criticizing amicus practice.

3. AMICUS PARTICIPATION: GOALS, METHODS, CONTEXT

   Amicus briefs are filed in the Supreme Court in increasing numbers in a range of subject matter areas with a broad band of varying emphases. In 1946, amicus briefs were filed in only 25% of the cases heard by the Court, but increased to 95% by 1998. (24) Amicus briefs cover a wide array of subject matter, but have been most prevalent in the areas of civil rights, economic interests, and federalism. (25) Amicus briefs have been filed in all Indian law cases of the past 25 years. (26)

   Amicus briefs may also be reviewed in the context of the "ideological" positions taken by amici. These positions are most conventionally defined as liberal or conservative. For example, in the context of federalism, liberal amici are pro-federal government and anti-state, while the conservative position is prostate rights and anti-federal government. (27) It is worthwhile to note in this regard that liberal/conservative participation is roughly 50-50, striking an effective balance. (28) Yet these otherwise reliable categories do not work so well in the field of Indian law, where the line-up tends to be the states and (non-Indian) business organizations on one side and the federal government (where it is not a party in the litigation) and tribal advocacy groups on the other side. (29)

   The policy focus typically urges the Court to take a certain position because of the possible ramifications for society at large, especially in regard to political and economic consequences. (30) The policy focus is especially prevalent in Indian law in matters of economic development and jurisdiction over non-Indians.

   The who of amicus participation is also significant in determining whether amicus practice is widespread and democratic or narrow and biased in some direction. The groupings most common in Indian law cases are the federal government and tribes on the Indian side (unless it is suing or being sued by the tribe) and the state on the non-Indian side with trade associations also on the non-Indian side and various advocacy or public interest groups on both sides. Again, Plains Commerce Bank is instructive:

   Long Family (Indian side)

   1. Federal Government

   2. Tribal Governments

   3. Indian Advocacy Groups

      Plains Commerce Bank (non-Indian side)

   1. State and local governments

   2. Non-Indian Advocacy Groups

   3. Non-Indian Trade Associations

      In looking at these groups, there is a disturbing pattern: "Indians" on the Indian side and "non-Indians" on the non-Indian side. This symmetry, however...