Turtle Talk: Updates on Indian law cases and Supreme Court

Thursday, January 12, 2012  

"No real surprises here, with the Court granting two cases — Salazar v. Patchak and Salazar v. Ramah Navajo Chapter. If past history is any indicator, there is a likelihood of a split in decisions here, given that tribal (and federal) interests are the petitions in Patchak and tribal interests are opposing federal interests in the Ramah case. It should be noted that past history always is irrelevant in a given case, but these two seem like they will come out as expected.

In Patchak, the questions involve federal immunity and standing doctrine, areas of considerable federal government concern where the government is fairly successful before the Court (more so the immunity question). There is always the concern that the Court thinks of Indian law as exceptional, and it could be open to creating an unusual exception in federal immunity because tribal interests are at play.

In Ramah, things looks a little rougher for tribal interests. True, tribal interests won a similar case in 2005 (Cherokee Nation v. Leavitt, in fact the last case tribal interests won before the Court), but the behind-the-scenes Court developments point to a likely result. There are three petitions relating to similar fact patterns arising out of three different lower courts, and the Supreme Court is holding one of those petitions (it appears — Arctic Slope Native Assn. v. Sebelius) pending the disposition of the federal government’s petition in Ramah. That’s not a good development, in that it’s exactly what the federal government asked the Court to do in its Arctic Slope response. Another petition, Salazar v. Southern Ute, is also pending."

Get the Story:
Mid-Term Supreme Court Indian Law Update (Turtle Talk 1/11)