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. And, as this post notes, Harvard hired nary a single Black, Latino/a, or American Indian faculty in her tenure (out of 29 hires).
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.
Unfortunately, Judge Wood joined Judge Posner’s recent opinion in Menominee Tribe Enters. v. Solis (2010) extending OSHA’s application to Indian businesses.
Judge Wood’s opinions in her several Indian law cases demonstrate that she is fairly respectful to Indian tribes and to tribal sovereignty. Wisconsin and Long could have easily gone the other way. Even in the cases she were rules against tribal interests, she does not denigrate Indians and tribes in any way.
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.
Judge Garland has also participated in the following decisions that that are mostly administrative law cases affirming agency decisions: Rosales v. U.S. (2008) (per curiam) (rejecting claims that certain nonmembers at Jamul should be able to vote in a Secretarial election, but favoring tribe); Bullcreek v. NRC (2004) (another challenge to the Goshute nuclear project by tribal members rejected, but favoring tribe); Mashpee Wampanoag v. Norton (2003) (reversing a district court order requiring the BAR to move quicker on its federal recognition decision); Ramapough Mountain Indians v. Norton (2001) (per curiam) (affirming decision by BAR not to recognize tribe); Conservation Law Foundation v. FERC (2000) (rejected tribal challenge to relicensing of hydropower project); and AMAX Land Co. v. Quarterman (1999) (rejected challenge to higher regulatory rates for Indian lands under MMS).
Turtle Talk 
Re: Judge Garland’s record. The decisions involving the proposed Nuclear repository on the Goshute reservation, such as the Bullcreek case, are not anti tribal. The Skull Valley Goshute tribe was in favor of the project. These are claims brought by tribal dissidents opposing decisions taken by their tribal government at the time.
Thanks. I should clarify.