Rebooting Indian law in the Supreme Court.

• Author: Fletcher, Matthew L.M.
• Position: 2010 Dillon Lecture

Aanii.

It is an honor to deliver the 2010 lecture in honor of South Dakota Supreme Court Associate Justice Charles Hall Dillon. Justice Dillon, I was pleased to discover, delivered an important dissent in an American Indian law case in 1924, Dakota Life Insurance Co. v. Morgan. (1) The majority had reversed a trial court decision affirming a life insurance award favoring the estate of an Indian who had represented to the insurance company that he was one-quarter Indian blood. Back then, it appears, insurance companies would refuse to insure the lives of Indian people unless they were one-quarter Indian blood or less. (2) It turned out the Indian, Jesse Kezena, was a full-blood Indian, and the insurance company wanted its money back. In dissent, objecting to the majority's agreement with the insurer, Justice Dillon wrote:

The highest function of the court should be to administer justice and not to engage in hairsplitting contests for the purposes of ascertaining the degree of Indian blood that may be possessed by the insured, especially when investigation, adjustment, and payment of the loss had been made. (3) Given the time--1924--this may have been a courageous dissent. And so I am honored to help us remember this jurist this year.

In 1990, twenty years before Citizens United v. FEC, (4) the United States Supreme Court decided Employment Division v. Smith, (5) one of the more controversial pronouncements issued by the Court in recent decades (and it appears one of the key cases that the students in this year's moot court competition will reference in their quest for glory). Smith completely changed the federal law of government interference with religious practices, holding that the Court would no longer apply strict scrutiny to government decisions that burdened religion. (6) The decision sparked a massive lobbying effort and succeeded in persuading Congress to overrule the decision legislatively. (7) In hindsight, Smith was a perfect vehicle for a Supreme Court majority led by Justice Scalia to undermine Warren Court-era precedents on religious freedom. The case involved two Native American Church practitioners who ingested peyote in ceremonies. But the problem is that both men were drug rehabilitation counselors who had been fired and were seeking unemployment compensation. From the point of view of most people, the case involved two drug rehabilitation counselors who were inexplicably drug abusers themselves--in other words, a perfect vehicle for a significant change in the law undermining protections for such allegedly criminal outliers.

As practitioners and scholars, we rarely look at federal Indian law in the big picture, with a strategy geared toward moving the law in a specific direction. Unlike the civil rights movement of the 1940s and 1950s spearheaded by Thurgood Marshall, Jack Greenberg, and the NAACP Legal Defense Fund, (8) culminating in Brown v. Board of Education, (9) and unlike the women's rights movement spearheaded by Ruth Bader Ginsburg and the ACLU in the late 1960s and 1970s, (10) there has never been anything that could be characterized as a "movement" in federal Indian law. Instead, Indian nations and advocates--and the federal judiciary--view Indian law through a reactionary lens, deciding major issues as the cases arise. There are a few mini-movements, during which long-term strategies were employed on a particular issue, such as the Cobell litigation, (11) the fishing rights cases of the 1960s and 1970's, (12) and perhaps a few others. Even those series of cases could hardly be called a strategic "movement." As a result of a lack of a viable long-term strategy, I posit that tribal interests are and will continue to be punching bags in Supreme Court litigation.

My talk will proceed in three parts. First, I will discuss several cases from the past few decades, cases that tribal advocates find to be terrible and inexplicable losses given the foundational principles of federal Indian law articulated in the Marshall Trilogy and in the first Cohen Handbook. I will demonstrate that many of these cases were easy cases for the Court to decide against tribal interests, or what Justice Scalia would call a "laugher," (13) as he did in depicting Carcieri v. Salazar. (14) Second, I will discuss the current strategies that tribal interests employ in litigating important cases in the federal judiciary and in the Supreme Court. I label this strategy--if it could be called that--reactionary, in that nearly all significant Indian law cases involve tribal reactions or defenses to situations initiated by others. To be fair, my research shows that the Supreme Court frequently accepts petitions for writ of certiorari from adversaries to tribal interests, putting tribal interests on the defensive anyway. (15) Finally, I will offer suggestions on how to reboot federal Indian law in the federal judiciary and the Supreme Court. I will discuss cases or lines of cases that demonstrate how Indian nations can persevere in the Supreme Court and suggest potential long-term strategies for tribal interests to pursue.

1. THE LOSSES

   Tribal interests, which I define in my scholarship as Indian nations and individual Indians involved in litigation that tend to represent the interest of Indian nations, fare horribly in the federal courts and most especially in the Supreme Court. Dean David Getches and Professor Alex Skibine have most famously demonstrated how tribal interests have been on the down side of more than 75 percent of the Indian law cases decided by the Supreme Court since about 1987. (16) Compare that outcome to the period of time between 1959--the beginning of what Professor Charles Wilkinson called the "modem era" of federal Indian law--until 1987 or so, where tribal interests prevailed in just under 60 percent of the cases. (17) It was 1987 when the newly-elevated Chief Justice Rehnquist and the newly-appointed Justice Scalia decided their first Indian law cases in their respective positions.

   And so we go to the cases. I apologize in advance for the characterization of these cases. They are not the way anyone who understands the context of these cases would describe them, but my proffered characterizations may help demonstrate how federal judges and Justices view these cases. If there is any doubt about the way that the Supreme Court and their clerks caricature tribal interests, I urge you to read a few cert pool memos.

   We have already considered Employment Division v. Smith, the case about the Indian (only one of the two petitioners was an Indian) drug rehab counselor who took drugs. It doesn't help that the case came about during the War on Drugs announced by the Reagan Administration only a few years earlier. What about Alaska v. Native Village of Venetie? (18) There, the state of Alaska began constructing a public school on Native property, largely for the benefit of the indigenous people of the area. The village sought to impose a tax on the construction, essentially a tax on the state. Once the Ninth Circuit affirmed the tribal tax, there must have been no doubt the Court would reverse using whatever legal justification it could find. And so, according to the Supreme Court, there is no Indian Country (except for one reservation) in Alaska. (19) How about Duro v. Reina, (20) where an Indian tribe sought to impose criminal penalties on a person who was not a citizen of the tribe, could not vote in tribal elections, could not serve on a jury, could never (on account of his ethnicity) become a citizen or vote with the tribe, and wasn't even entitled to paid counsel in case of indigent status? Dare I say more? Was the outcome there surprising?

   To extend the citizenship notion further along this continuum, there are the civil jurisdiction cases; namely Montana v. United States (21) and Brendale v. Colville Confederated Tribes. (22) In both cases, non-Indians (remember, they cannot ever be citizens and have few, if any, political rights in tribal government) living within reservation borders but on fee simple land no longer subject to federal supervision successfully opposed tribal government regulation of their hunting and fishing rights and use of their own land.

   And then there's Blatchford v. Native Village of Noatak. (23) The Ninth Circuit there held that the State of Alaska was immune from suit by citizens of other states and even citizens of Alaska, but somehow not suits brought by Indian tribes. And don't forget that the underlying suit involved a state natural resources revenue sharing plan benefiting only Native Alaskan villages and excluding all other villages, a plan asserted to be racially discriminatory by the State's attorney general. Occasionally, tribal interests are chewed up in the buzz saw of states rights and federalism, as in Seminole Tribe v. Florida (24) and Idaho v. Coeur d'Alene Tribe. (25) For key federalism thinkers like Justice Scalia, Justice Thomas, and numerous lower court judges, nothing in the Constitution protects tribal sovereignty (if it exists at all). In fact, since the Constitution expressly delineates state and federal sovereignty, it makes no sense to find in favor of tribal sovereignty over those sovereigns. Ever.

   Several cases involve individual Indians who are guilty of some crime, sometimes heinous, who win below on jurisdictional grounds when the court finds that the prosecuting government has no authority over the locus of the crime. The most-feared case is where a perpetrator escapes to Indian Country and become "fugitives from justice. (26) In these scenarios, the Indian crook appears to the law-and-order-minded Court like he or she is getting away with something. And so you have reservation diminishment cases like Hagen v. Utah. (27) Conversely, you have United States v. Lara, (28) where the defendant attacked a law officer deputized by both the tribal government and the federal government, and where the defendant never appealed the...