President Barack Obama and Vice President Joe Biden talk with Chief Judge Merrick B. Garland in the Oval Office, prior to a Rose Garden statement announcing Chief Judge Garland as the President's nominee to the United States Supreme Court on March 16, 2016. Photo by Pete Souza / White House

Supreme Court nominee comes with some Indian law experience

Wednesday, March 16, 2016

Update: Judge Garland will not be hearing the case involving the Cowlitz Tribe's land-into-trust application. The post has been updated to reflect the reassignment. See March 17 Order.

President Barack Obama nominated Merrick Garland to serve on the U.S. Supreme Court on Wednesday and his pick comes with some Indian law experience.

Garland is the chief judge of the D.C. Circuit Court of Appeals, which hears a significant number of Indian law cases. But he's never written a majority opinion in any of the biggest disputes that came before him.

Garland, for example, sat on the panel that decided the infamous tribal labor law case in February 2007. By a unanimous vote, the court ruled that the National Labor Relations Act can be applied to tribal enterprises without infringing on their sovereignty. Tribes today are still fighting to overturn the decision in Congress.

Garland also has heard appeals in the Cobell trust fund case. One decision was extremely important: in November 2005, the court freed the Interior Department from conducting a comprehensive historical accounting long sought by Indian beneficiaries. The ruling essentially weakened the dollar amount for which the federal government was liable for failing to live up to its trust responsibilities.

Indianz.Com SoundCloud: White House Conference Call on Supreme Court Nominee Merrick Garland

Seven years later, Garland was scheduled to hear an appeal that challenged the fairness of the $3.4 billion settlement to the case. But he didn't end up deciding that matter either after it was consolidated with other challenges. A different panel of the court affirmed the settlement and the first payments went out to Indian Country later that year.

Back in 2008, Garland was part of yet another panel in a big Indian law case: a lawsuit over the citizenship status of the Freedmen, who are the descendants of former African slaves, within the Cherokee Nation. The outcome was significant -- the court held that individual tribal leaders were not entitled to sovereign immunity -- but Garland didn't write the ruling either. The dispute itself is still pending in the courts.

In an earlier case, Garland heard an appeal involving the Mashpee Wampanoag Tribe of Massachusetts, whose federal recognition petition was subject to numerous delays. In August 2003, the court ruled that the Bureau of Indian Affairs could not be forced to make a decision by a certain deadline due to limited resources. The tribe eventually won recognition and its status was finalized in May 2007.

Garland was due to hear another closely-watched Indian law case this Friday. He was originally assigned to the panel that will determine whether the Bureau of Indian Affairs lawfully approved a land-into-trust application for the Cowlitz Tribe of Washington.

But due to his nomination, Garland will not be hearing any cases. The case will instead be heard by Judge Cornelia T.L. Pillard, Judge Robert L. Wilkins and Judge Harry T. Edwards, according to an order filed on Wednesday.

Native women and their supporters rallied at the U.S. Supreme Court on December 7, 2015, as the justices heard Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The case is the first time that an appellate court has reviewed a land-into-trust acquisition that was approved following the U.S. Supreme Court decision in Carcieri v. Salazar. A ruling for the BIA would represent a significant victory for tribal interests because attempts to fix the decision in Congress have faltered.

It could take months for the D.C. Circuit to issue a decision and it's possible that the losing side could appeal to the Supreme Court. By that time, Obama hopes the Senate will have confirmed Garland despite opposition from Republicans, who want the winner of the November presidential election to nominate the next justice.

"Now, I recognize that we have entered the political season -- or perhaps, these days it never ends -- a political season that is even noisier and more volatile than usual," Obama said at the White House on Wednesday morning. "I know that Republicans will point to Democrats who’ve made it hard for Republican Presidents to get their nominees confirmed. And they’re not wrong about that."

"To suggest that someone as qualified and respected as Merrick Garland doesn’t even deserve a hearing, let alone an up or down vote, to join an institution as important as our Supreme Court, when two-thirds of Americans believe otherwise -- that would be unprecedented," Obama added.

The Supreme Court has a record four Indian law cases on the docket for its current term and decisions are pending in three of them. It's possible that more could be added to the list and the lack of a full slate of justices has been troublesome to tribal leaders.

"This is very serious business," Lee Juan Tyler, the vice chairman of the Shoshone-Bannock Tribes of Idaho, said at the National Congress of American Indians winter session in Washington, D.C., last month.

"It is out of line and unethical" for members of the Senate to refuse to give a nominee a fair shot, Tyler added.

"This is a very very sad situation in America," Tyler said.

More from Turtle Talk:
Judge Garland’s Indian Law Record (March 16, 2016)
2010 Edition: Possible Supreme Court Nominees and Their Indian Law Records (Part I) (April 12, 2010)