Supreme Court Citations to Indian Law Scholarship

In light of recent commentaries about the value (or lack thereof) of legal scholarship (here) and new scholarship about the frequency the Supreme Court Justices cite to legal scholarship (it’s rather a lot), we thought it would be fun to list some findings about the Supreme Court’s citations of Indian law scholarship going back to 1959.

We’ll look later at the frequency of citations overall in later work.

Treatises and Casebooks

First, let’s get the Cohen Handbook out of the way. We have a liberal definition of legal scholarship (no pun intended). The numbers in parentheses are number of cases, and number of citations):

Cohen 2005 — 2 cases, 11 citations [U.S. v Jicarilla Apache had 10 cites alone -- guess the Court is finally reading the thing]

Cohen 1982 — 31, 72

Cohen 1958 [actually, Dept. of Interior rewrite] — 20, 40

Cohen 1940/1940/1942/1945 — 15, 29

Overall, the Handbook of Federal Indian Law in all its incarnations has been cited in 68 cases, for a total of 152 citations.

Law and the American Indian/American Indian Law

Price, 1973 edition — 3 cases, 4 citations

Price & Clinton, 1983 edition — 1 case, 1 cite

Clinton, Newton, and Price, 1991 edition — 1 case, 1 cite

Getches, Wilkinson, and Williams on Federal Indian Law — 1 case, 1 cite

Canby Nutshell — 1998 edition — 1 case, 1 cite

Mills, Oklahoma Indian Land Laws (1924) — 1 case, 1 cite

Law Review Article/Book Authors

Leading Repeat Players: There aren’t very many of these. Most articles or books cited are one and done. Here are the top repeat players,  their articles, and the opinions that cite them:

Robert Clinton: 6 cases, 7 citations (3 different articles)

Clinton, Isolated in Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government, 33 Stan. L.Rev. 979, 1002-1003 (1981)

* United States v. Navajo Nation, 537 U.S. 488 (2003) – 1 time in Souter dissent

Clinton, Criminal Jurisdiction Over Indian Lands: A Journey Through a Jurisdictional Maze, 18 Ariz.L.Rev. 505 (1976)

* Duro v. Reina, 495 U.S. 676 (1990) – 1 time in majority (Kennedy)

Clinton & Hotopp, Judicial Enforcement of the Federal Restraints on Alienation of Indian Land: The Origins of the Eastern Land Claims, 31 Me. L.Rev. 17, 23–38 (1979)

* City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) – 1 time in majority (Ginsburg)

* Idaho v. Coeur d’Alene Tribe, 521 U.S. 261 (1997) – 1 time in Souter dissent

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 2 times by dissent (Blackmun)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 2 times by majority (Powell)

Felix Cohen — 6 cases, 7 citations (3 different articles, not to mention the Handbook)

Cohen, Original Indian Title, 32 Minn.L.Rev. 28 (1947)

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 1 time by dissent (Blackmun)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 1 time by majority (Powell)

* United States v. Dann, 470 U.S. 39 (1985) – 2 times by majority (Brennan)

Cohen, Indian Rights and the Federal Courts, 24 Minn.L.Rev. 145, 153 (1940)

* Organized Village of Kake v. Egan, 369 U.S. 60 (1962) – 1 time by majority (Frankfurter)

Cohen, Spanish Origin of Indian Rights, 31 Geo.L.J. 1 (1942)

* United States v. Dann, 470 U.S. 39 (1985) – 1 time by majority (Brennan)

* Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) – 1 time by majority (Marshall)

Carole Goldberg — 4 cases, 13 citations (1 article)

Goldberg, Public Law 280: The Limits of State Jurisdiction over Reservation Indians, 22 UCLA L.Rev. 535, 540-544 (1975)

* Three Affiliated Tribes v. Wold, 476 U.S. 877 (1986) – 3 times by majority (SOC)

* Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984) – 2 times by majority (Blackmun)

* Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979) – 3 times by majority (Stewart); 1 time by dissent (Marshall)

* Bryan v. Itasca County, 426 U.S. 373 (1976) – 4 times by majority (Brennan)

Charles Wilkinson – 3 cases, 4 citations (3 different articles/books)

G. Coggins & C. Wilkinson, Federal Public Land and Resources Law 434 (1981)

* Amoco Production Co. v. Village of Gambell, 480 U.S. 531 (1987) – 1 time by majority (White)

Wilkinson & Biggs, The Evolution of the Termination Policy, 5 American Indian L.Rev. 139 (1977)

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 1 time by dissent (Blackmun)

Wilkinson & Volkman, Judicial Review of Indian Treaty Abrogation: “As Long as Water Flows, or Grass Grows Upon the Earth”-How Long a Time Is That?, 63 Calif.L.Rev. 601 (1975)

* United States v. Dion, 476 U.S. 734 (1986) – 2 times by majority (Marshall)

Other Repeat Players

Joseph Burke — 2 cases, 2 citations

Burke, The Cherokee Cases: A Study in Law, Politics, and Morality, 21 Stan.L.Rev. 500 (1969)

* United States v. John, 437 U.S. 634 (1978) – 1 time by majority (Blackmun)

* Choctaw Nation v. Oklahoma, 397 U.S. 620 (1970) – 1 time by majority (Marshall)

Reid Chambers & Monroe Price: 2 cases, 2 citations

Chambers & Price, Regulating Sovereignty: Secretarial Discretion and the Leasing of Indian Lands, 26 Stan. L.Rev. 1061, 1061-1068 (1974)

* United States v. Navajo Nation, 537 U.S. 488 (2003) – 1 time in Souter dissent

* Mountain States Telephone & Telegraph Co. v. Pueblo of Santa Ana, 472 U.S. 237 (1985) – 1 time by dissent (Brennan)

Gerald Gunther — 2 cases, 6 citations

Gunther, Governmental Power and New York Indian Lands—A Reassessment of a Persistent Problem of Federal–State Relations, 8 Buffalo L.Rev. 1, 4–6 (1958–1959)

* City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005) – 4 times in majority (Ginsburg)

* Oneida Indian Nation v. County of Oneida, 414 U.S. 661 (1974) – 2 times by majority (White)

William Hagen — 2 cases, 2 citations

W. Hagan, Indian Police and Judges 104-125 (1966)

* Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) – 1 time by majority (Marshall)

* Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) – 1 time by majority (Rehnquist)

Most-Cited Student Authored Paper – 2 cases, 4 citations

Comment, Tribal Self-Government and the Indian Reorganization Act of 1934, 70 Mich.L.Rev. 955, 959 (1972)

* Northern Cheyenne Tribe v. Hollowbeast, 425 U.S. 649 (1976) – 1 time by majority (Brennan)

* Mescalero Apache Tribe v. Jones, 411 U.S. 145 (1973) – 3 times by majority (White)

The Most-Cited Organizational Author — National American Indian Court Judges Association — 4 cases, 8 citations (3 reports)

National American Indian Court Judges Assn., Indian Courts and the Future (Getches, ed. 1978)

* Nevada v. Hicks, 533 U.S. 353 (2001) – 1 time by Souter concurrence

National American Indian Court Judges Association, Native American Tribal Court Profiles (1984)

* Duro v. Reina, 495 U.S. 676 (1990) – 1 time by majority

National American Indian Court Judges Assn., Justice and the American Indian: The Impact of Public Law 280 upon the Administration of Justice on Indian Reservations 6–13 (1974)

* Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463 (1979) – 4 times by majority (Stewart); 1 time by dissent (Marshall)

* Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) – 1 time by majority (Rehnquist)

Honorable Mention — Father Prucha

Not a legal scholar (and not always terribly friendly to tribal interests, either), but Father Prucha merits a mention for his 8 cases and 9 citations (three books, plus another he edited):

F. Prucha, The Great Father (1984)

* Hagen v. Utah, 510 U.S. 399 (1994) – 1 time by dissent (Blackmun)

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 2 times by dissent (Blackmun)

Prucha, American Indian Policy in the Formative Years (1962)

* United States v. Lara, 541 U.S. 193 (2004) – 1 time by majority (Breyer)

* South Carolina v. Catawba Indian Tribe, 476 U.S. 498 (1986) – 1 time by dissent (Blackmun)

* County of Oneida v. Oneida Indian Nation, 470 U.S. 226 (1985) – 1 time by majority (Powell)

* Wilson v. Omaha Tribe, 442 U.S. 653 (1979) – 1 time by majority (White)

Prucha, Andrew Jackson’s Indian Policy: A Reassessment, 56 J. of Am. Hist. 527 (1969)

* United States v. John, 437 U.S. 634 (1978) – 1 time by majority (Blackmun)

Otis, The Dawes Act and the Allotment of Indian Lands (Prucha ed. 1973)

* Hagen v. Utah, 510 U.S. 399 (1994) – 1 time by dissent (Blackmun)

This entry was posted in Author: Matthew L.M. Fletcher, Research, Scholarship, Supreme Court, Uncategorized and tagged , . Bookmark the permalink.

7 Responses to Supreme Court Citations to Indian Law Scholarship

  1. James Oberly says:

    Prof. Fletcher– Thank you for this post. Your question caused me to re-read the opinion and dissents in *Minnesota v. Mille Lacs* (1999). Neither the opinion, written by Justice O’Connor, nor the dissents by Chief Justice Rehnquist and by Justice Thomas, cite a single scholarly secondary source. There were no footnotes or parenthetical cites to law reviews, and none to history books. However, the opinion did cite many times the research reports prepared for trial by anthropologists and historians, especially those of Charles Cleland and Bruce White. They later published those reports as *Fish in the Lakes, Wilde Rice, and Game in Abundance* (Mich. State U. Press, 2000), edited by James McClurken. That leads me to ask: can you include in your tally the number of times scholarly research reports submitted at trial are cited by the Court?
    Thanks,
    –Jim Oberly
    History Department, Univ. of Wisconsin-Eau Claire

  2. James Oberly says:

    Thanks, and good luck on the broader project. The McClurken-edited volume may be instructive–the scholars wrote their reports for trial, and only after the Supreme Court ruled, did they publish their work.

  3. Lori WIndle says:

    Looking for Stephen Pevar’s book, “The Rights of Indians and Tribes” – is there a reason this is not included? Is it because it is more of a layman’s handbook on Federal Indian law? Perhaps in a later article?
    thanks-

  4. Pingback: First Addendum to Supreme Court Citations to Indian Law Scholarship: Treatises and Casebooks | Turtle Talk

  5. Pingback: Turtle Talk

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