Turtle Talk: Navajos not laughing after hearing

Law

Tuesday, February 24, 2009

"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.

The Navajo Nation’s attorney, Carter Phillips, is a gas, but I suspect the Navajos aren’t laughing. I think he knew his side never had much of a chance. He made several jokes, including one about needing a haircut to explain why he used a barber shop hypothetical (p. 28, no one laughed), repeated jokes about the testimony of former Interior Secretary Udall (p. 40-41, 46, which did elicit laughter), and one joke that appeared to be about the unusual character of this case — that the Navajos lost below, and came up with a new theory (p. 40, more laughter)."

Get the Story:
Commentary on the Navajo Nation Oral Argument (Turtle Talk 2/24)

Federal Circuit Decision:
Navajo Nation v. US (September 13, 2007)

March 2003 Supreme Court Decision in US v. Navajo Nation:
Syllabus | Opinion [Ginsburg] | Dissent [Souter]