"Justice Souter’s retirement at the end of this Term all but demands a recount of his voting record in Supreme Court cases involving federal Indian Law. He was part of the Court for nearly 20 Terms, and voted in 41 Indian law cases (for a list of Indian law cases, see our Supreme Court page). Excluding two votes in cases that are difficult to characterize (Negonsott and Youpee), Justice Souter voted for tribal interests 16 times and against them 23 times.

Several themes run through Justice Souter’s Indian law votes. He usually sided with tribal interests in the areas of treaty rights and treaty interpretation, as well as in trust cases involving the United States as a defendant. He also sided with tribal interests in federalism cases involving the 11th Amendment. But he typically ruled in favor of states and against tribal interests in tax cases, especially after the mid-90s, and in cases involving tribal jurisdiction over nonmembers.

Overall, he left an indelible footprint on federal Indian law. His legacy likely is not yet determinable. He only wrote four opinions for the Court, and six other opinions concurring or dissenting. Justice Souter will probably be best known in Indian law circles for his devastating concurring opinion in Nevada v. Hicks, but his overall record is relatively favorable to tribal interests. And, in our opinion, the Hicks concurrence served as a powerful wake-up call to tribal advocates who hadn’t noticed how far the Court had drifted away from tribal positions."

Get the Story:
Justice Souter’s Federal Indian Law Legacy (Turtle Talk 5/3)

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