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Turtle Talk: Supreme Court nominees and Indian law
Thursday, May 7, 2009
Filed Under: Law

"We previously posted on four possible Supreme Court nominess after President Obama’s election — Judges Wood and Sotomayor, Dean Kagan, and former SG Waxman. We update those materials, and add a few more possibilities (Judges McKeown and Wardlaw, and Professors Karlan and Sullivan). In no particular order….

1. CA2 Judge Sonia Sotomayor

Judge Sotomayor has written the majority opinions in two unexceptional Indian law cases, Catskill Development v. Park Place Entertainment (2008 ) and United States v. White (2001). Catskill Development involved the authority of the National Indian Gaming Commission to review and opine on gaming management contracts, and White involved the federal prosecution of Mohawk Indians for failure to report income to the IRS. Judge Sotomayor has some Indian law exposure, but not on anything controversial.

Judge Sotomayor also voted with the majority in Bassett v. Mashantucket Pequot (2000), a case affirming the sovereign immunity of the tribe.

2. CA9 Judge Kim McLane Wardlaw

Judge Wardlaw’s Indian law record is brief, and not very favorable to tribal interests. Her voting pattern is closer to Justice Kennedy, I suspect, than Justice Souter’s, in Indian law cases. She wrote the majority opinion in Barona Band v. Yee, 528 F.3d 1184 (9th Cir. 2008), holding that states may tax the construction materials used to build tribal casinos. She joined the en banc majority (unanimous) in Navajo Nation v. Dept. of HHS, 325 F.3d 1133 (9th Cir. 2003) (en banc), an opinion authored by Judge McKeown (see below). She joined the dissent inBugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), which would have held against the Tribe in an important jurisdiction case, contrary to Judge McKeown, who joined the majority.

She did join the majority in Pit River Tribe v. United States Forest Service, 469 F.3d 768 (9th Cir. 2006), favoring the Tribe in an environmental case. And she joined the majority in United States v. Blaine County, Mont., 363 F.3d 897 (9th Cir. 2004), favoring American Indians in a voting dilution case.

3. CA9 Judge M. Margaret McKeown

Judge McKeown’s record in Indian law cases is extensive — and checkered. She has written the majority opinion in several Indian law cases in the Ninth Circuit. Her voting pattern is fairly similar to Justice Souter’s."

Get the Story:
Possible Supreme Court Nominees and Their Federal Indian Law Record (Turtle Talk 5/7)