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

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)

Join the Conversation

Related Stories
Editorial: Scales of justice often lean wrong way for Indian people (3/15)
Alaska Natives seek fair consideration of Supreme Court nominee (3/14)
Supreme Court schedules hearing in Indian domestic violence case (3/11)
Diane Humetewa not under consideration for Supreme Court seat (3/11)
Gyasi Ross: Nominate Diane Humetewa to serve on Supreme Court (3/9)
Dollar General defends plan to open in majority Native community (03/08)
Joe Biden: Senate Republicans must act on pick for Supreme Court (03/04)
Klamath Tribes oppose Dollar General store due to court challenge (03/01)
Aaron Payment: Tribal sovereignty hangs in the balance at Supreme Court (02/29)
Steve Russell: Looking for an unbiased justice on Supreme Court (02/29)
Steven Newcomb: Justice Scalia didn't know anything about Indian law (02/26)
Updates from Day 2 of National Congress of American Indians winter session in D.C. (02/24)
Barack Obama: What I'm looking for in a Supreme Court nominee (02/24)
Senate Republicans refuse to consider Supreme Court nominee (2/24)
No Supreme Court opinions this week following Scalia's death (2/22)
Supreme Court delays work due to ceremony for Justice Scalia (2/19)
April Youpee-Roll: Supreme Court makes up Indian law decisions (2/18)
Peter d'Errico: Justice Antonin Scalia scorned tribal sovereignty (2/18)
Linda Greenhouse: A chance to reset a partisan Supreme Court (2/18)
President Obama affirms intent to fill vacancy on Supreme Court (2/17)
Matthew Fletcher: Tribes couldn't count on Justice Scalia's vote (2/17)
David Wilkins: Justice Antonin Scalia leaves an anti-tribal record (2/17)
Stakes raised as Supreme Court weighs domestic violence case (2/16) Appeals court backs tougher sentence in domestic violence case (2/16)
Steve Russell: Justice Antonin Scalia was wrong about Indian law (2/15)
Justice Antonin Scalia dies with Indian law cases on the docket (2/13)
John Lavelle: Supreme Court weighs key tribal sovereignty issue (02/10)
Supreme Court declines NAGPRA case affecting Kumeyaay Nation (01/25)
Menominee Nation loses contract support costs case at Supreme Court (01/25)
Supreme Court hears Omaha Tribe reservation boundary dispute (01/20)
Ex-US Attorney welcomes review of domestic violence case (12/17)
Supreme Court agrees to review yet another Indian law dispute (12/14)
Native women rally at Supreme Court for key tribal jurisdiction case (12/07)
Native women schedule Quilt Walk for Justice at Supreme Court (12/01)
Native women to rally at Supreme Court for upcoming case (11/11)
DOJ to help with arguments in Supreme Court jurisdiction case (11/09)
Native women defend tribal jurisdiction in Supreme Court case (10/26)
Tribes urged to bring states on board for Supreme Court case (10/20)
Cheyenne & Arapaho Tribal Tribune: Supreme Court case tests tribal jurisdiction (10/14)
Supreme Court schedules oral arguments in two Indian law cases (10/12)
States oppose tribal jurisdiction in upcoming Supreme Court case (10/07)
Supreme Court rejects petitions in four more Indian law cases (10/05)
Supreme Court agrees to hear Omaha Reservation boundary case (10/02)
Supreme Court considers petitions in slew of Indian law cases (09/22)
Bryan Newland: The racist foundation of Supreme Court rulings (09/08)
Supreme Court agrees to hear first tribal jurisdiction case in years (06/15)
Supreme Court needs more time to review tribal jurisdiction case (6/8)
SCOTUSBlog: DOJ urges denial of petition in tribal court dispute (05/20)
DOJ files brief in tribal jurisdiction case before Supreme Court (5/14)
Updates from National Congress of American Indians DC meeting (2/27)
Updates from National Congress of American Indians winter session (2/26)
Supreme Court asks DOJ for views in Mississippi Choctaw case (10/06)
Trending in News
More Headlines