Turtle Talk: Indian law and potential Supreme Court picks

Law

Tuesday, April 13, 2010

"As we did after Justice Souter’s retirement, we’ll profile a few of the possible nominees to replace Justice Stevens. We’ll focus on the short-list supplied recently by the NYTs. Today we focus on Kagan, Wood, and Garland (the judges), in no particular order.

1. USSG Elena Kagan

Solicitor General Kagan does not appear to have worked on any Indian law cases prior to her time in government, but she did spend a great deal of time in the Clinton White House. She may have run across some tribal questions then, but I don’t know of any. Her experience as dean of Harvard Law School once put her in the position of managing the Oneida Chair at Harvard Law School, which continues to utilize visitors instead of hiring a permanent, full-time Indian law-focused faculty member.

Since becoming Solicitor General, Kagan has participated in the following cases: United States v. Tohono O’odham Nation (cert petition stage); Wolfchild v. United States (cert opposition); Barrett v. United States (cert opposition); Navajo Nation v. USFS (cert opposition); Marceau v. Blackfeet Housing Authority (cert opposition); and a few Indian Country criminal cases. It is not clear at all what amount of participation she had in each of these cases, nor are any of these cases ones in which the government could have chosen sides (as amicus).

2. CA7 Judge Diane Wood

Judge Wood sits on the Seventh Circuit, which doesn’t hear very many Indian law cases, but she does have a significant track record.

She wrote the majority opinion in U.S. v. Long (2003), in which the court upheld the Duro fix prior to the Supreme Court’s decision in U.S. v. Lara. In Wisconsin v. EPA (2001), she wrote the majority opinion, in which the court held that the EPA’s decision to grant treatment-as-state status to the Sokaogon Chippewa Community was reasonable. InSokaogon Chippewa Community v. Babbitt (2000), she wrote the majority opinion in a case the court held it was reasonable for the district court to reject the St. Croix Chippewa Tribe’s motion to intervene in a gaming case involving three other Wisconsin tribes. In Thomas v. United States (1999), she wrote the majority opinion holding that the LCO Chippewa Band’s tribal council was not a necessary party to a claim challenging the outcome of a Secretarial election. In Burgess v. Walters (2006), she wrote the majority opinion upholding the State of Wisconsin’s action in committing an Indian based on the PL280 criminal/prohibitory — civil/regulatory analysis.

3. CADC Judge Merrick Garland

Judge Garland’s record on American Indian issues is spotty at best. He has authored two opinions with in cases with some minor tribal interest, Denia v. NRC (2007) and United States Air Tour Assn. v. FAA (2002). In Devia, he rejected a claim by tribal members opposed to a proposed nuclear dump on the Goshute Reservation as unripe, and in U.S. Air Tour, he rejected a claim that a federal air noise rule exempting flights by the Hualapai Nation was unconstitutional (in a footnote).

However, Judge Garland has been part of panels in the following cases: Vann v. Kempthorne (2008), San Manuel Indian Bingo & Casino v. NLRB (2007), and Cobell v. Norton (2005). San Manuel, as many readers know, is one of the most notorious Indian law decisions of the decade, upholding an administrative decision to assert NLRB jurisdiction over a tribal gaming operation. The Cobell 2005 decision was a reversal of a decision by Judge Lamberth forcing the DOI to continue its historical accounting of IIMs. Vann is a closer case (obviously because of the incredible oppression of the Cherokee Freedmen, but the panel decision found no tribal official immunity from suit by the Freedmen over their disenrollment."

Get the Story:
2010 Edition: Possible Supreme Court Nominees and Their Indian Law Records (Part I) (Turtle Talk 4/12)

Also Today:
Obama considering as many as 10 candidates for high court opening (The Washington Post 4/13)