Why Does the Supreme Court Grant Cert Petitions Almost Exclusively Against Tribal Interests?

It’s a long enough answer, full of subjectivity, but worth discussion in the context of the United States v. Tohono O’odham Nation case, to be argued Nov. 1.

Why is this case so important? There’s no split in authority to be seen, and there hasn’t even been a judgment against the United States yet. So under Supreme Court Rule 10, we’re left with “importance” or  the “gross error” of the lower court.

The real question is whether the United States must defend two sets of claims filed in different courts. Money claims against the U.S. are normally filed in the Court of Federal Courts, and other claims can be filed in district court. TON filed a claim for equitable relief in DCT, and then a money damages claim in the CFC. The question is whether both claims are allowable under 28 USC 1500 (in other words, are they different claims).

So what’s so important about this case? Why now? Why not wait to see if the government loses a money judgment?

Perhaps the “importance” of money claims is the possible magnitude of them. Remember, the damages award in the Navajo Nation Peabody Coal claim was $600 million (and upwards of $1 billion after interest); the original Black Hills award was $17.5 million (now much more than that); and the Cobell award could have been billions (and the settlement was around $3 billion). Who else has repeated money claims of that magnitude against the federal government?

Indian tribes, that’s who.

This entry was posted in Author: Kate E. Fort, Author: Matthew L.M. Fletcher, Supreme Court and tagged , , . Bookmark the permalink.

2 Responses to Why Does the Supreme Court Grant Cert Petitions Almost Exclusively Against Tribal Interests?

  1. lbm says:

    Although the question you pose is fair, in the case of Federal Circuit decisions there is rarely any split (given that court’s jurisdiction), so Rule 10 must be viewed in that light. I think the United States likely also gets some special consideration in these cases, particularly in a case where (like here) it can argue that the issue is not just TON, but reportedly 30 similar “paired” cases. Finally, the presence of a dissent below (among other points) surely provided an added persuasive point.

    So while I remain of the view that the question you pose is fair, I am not convinced that this case supports the bigger point.

  2. Pingback: SCOTUSblog has the Tohono O’Odham Argument Preview « Turtle Talk

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