It’s time for a review of what the Supreme Court did in Indian law this Term, since the Term will end in a few weeks.
Consistent with the last 15 years or so (maybe 20), the Court was very hostile to tribal interests. The Roberts Court’s view of Indian law has changed slightly from the Rehnquist Court; frankly, for tribal interests, to the worse. All of the Indian law cases decided by the Court this Term could be construed as “error correction,” cases in which the Court (usually unanimously) believed the lower court made an egregious error. This appears to be a trend in the recent years, in which the Roberts Court will only grant certiorari in cases to correct these egregious errors. The Court does not see Indian law as a dynamic area of law — Indian law cases are very easy for most of the Justices — nor are Indian law cases vehicles for examining important issues of constitutional law beyond federal Indian law.
For the Roberts Court, Indian law cases are easy for a couple reasons. First, state government interests always trump tribal interests, and every case in which tribes defeat states strongly attracts the attention of the Court. The reverse simply is not true. It is my sense that the Roberts Court is happy to rest on the fact that state sovereignty is strongly protected by the text of the Constitution, and tribal sovereignty is not. Second, the long, complicated, and important history of federal Indian law and policy is utterly unimportant to the Roberts Court. Longstanding practice, legislative history, and simple Indian affairs history does nothing to persuade a majority of the Court, with only Justice Stevens paying much attention to it.
The Court heard oral argument and issued opinions in two Indian law cases, and a third case involving Native Hawaiians.
The Court’s decision in Carcieri v. Salazar, rejecting the authority of the Secretary of Interior to take land into trust for the Narragansett Tribe, was a “laugher,” according to Justice Scalia. This was a very easy case for the conservative wing of the Court, which turned a complicated historical question involving federal administrative practice and Congressional intent into a statutory interpretation case involving the meaning of the word “now” in the context of the Indian Reorganization Act. For the Justice with blinders on, “now” has only one meaning. In fact, the case was a states’ rights case, with the State of Rhode Island and its dozen-odd amici states demanding, and receiving from the Roberts Court, more control over Indian Country. The states’ rights aspect raised the case from simply “easy” to “important” for this Court.
The Court’s decision in United States v. Navajo Nation was even easier for the Court, though no Justice went on record to say it was a joke. Navajo II was yet another complex historical case involving (this time) corrupt and reprehensible agency action in which the Court turned into a simple statutory interpretation case. Principles of federal Indian law — that ambiguous statutes should be interpreted to the benefit of Indian tribes and that the United States has a higher duty of care to Indian tribes — appear nowhere in this case. That’s what made this case “easy.” What made it important was the large sum of money the Federal Circuit held the U.S. owed the Navajos for double-dealing, and the fact that the Supreme Court had told the Federal Circuit “no” once before, giving the Court an opportunity to “correct” a lower court that had rebuffed its superiors.
Both Carcieri and Navajo Nation II had this in common — the lower court extensively reviewed and found dispositive/persuasive the history of statutes, well-settled federal Indian law principles, and the equities of the cases favoring tribal interests, only to be reversed by the Roberts Court that gave virtually no credence to these factors. The Roberts Court knows full well how to take complex Indian law cases and simplify them.
The final case heard by the Court this Term was Hawaii v. Office of Hawaiian Affairs. The Court opted for a minimalist take on the Hawaii Supreme Court’s holding that the apology resolution adopted by Congress created legal authority to set aside trust property for Native Hawaiians, authority that trumped the state’s authority to dispose of the property. Unanimously, the Court vacated the lower court decision, leaving open the possibility that the state court could still find a state law basis for its holding. This was probably the best the respondents could hope for, given that some Justices entertained the idea that even state law was unavailable to the respondents.
The Supreme Court also denied cert in a few dozen other Indian law cases. Of note, the Court last week denied cert in the Arizona Snowbowl case, Navajo Nation v. United States Forest Service. In that case, the petitioners had reasonably alleged that the Ninth Circuit had adopted the stingiest test for proving that the federal government had “substantially burdened” the exercise of religion under the Religious Freedom Restoration Act. The Court could have used the case as a vehicle for ratcheting down (or up) the “substantial burden” test, but chose not to. While technically this was a statutory interpretation case, the “substantial burden” test has its origins in constitutional common law. This case, and several other interesting cases, suggest that the Roberts Court is not willing or compelled to decide federal Indian common law cases, instead focusing on statutory cases.
The Court also turned away a pair of tribal sovereign immunity cases (Cook, Nos. 08-929 and 08-930); another RFRA case (Friday v. United States); several gaming cases (Kickapoo and MichGo the most prominent); and an Indian tax case brought by the Oklahoma Tax Commission (Kemp v. Osage). For all practical purposes, these cases were common law cases. The Roberts Court does not appear interested in common law cases, even those brought by states, unless they are easily reducible to a simple question, such as statutory interpretation.
In short, the Roberts Court inclination against tribal interests and in favor of simplifying (even oversimplifying) Indian law cases indicates a slight departure from the Rehnquist Court’s predispositions.