Ok, so I used the westlaw search function and dug up all the cases from the federal courts of appeal (published and whatever unpublished opinions show up) that included the words “Indians” or “tribe.” That got me well over 3600 cases for 2000-present, so I used westlaw’s relevance function to make them most relevant for me. The first 850 or cases usually included what I call “tribal interests” — then the drop-off was steep so I stopped looking at 1000. [I should note that the Tohono O'odham case that went to the Supreme Court didn't show up until 990s, so there's that.] I counted wins and losses, excluded cases where tribes went against tribes, Indians went against tribes (except in criminal cases — a few ICRA habeas cases, in other words), and most criminal cases involving Indian defendants (except where Indian country/reservation boundaries had play, and Duro fix-style cases). I split them up by 2000-2009, and 2010-present.
Tribal interest wins — 233
Tribal interest losses — 179
Winning percentage — 56.6 percent
Tribal interest wins — 55
Tribal interest losses — 77
Winning percentage — 41.7 percent
So we’re one-third or so through the 2010s, and things aren’t looking so great for tribal interests. Is this significant, statistically or otherwise? Make your own judgments.
A few more comments on methodology. Yeah, I know “wins” and “losses” are subjective, but they’re not really. A tribe is an appellant, the appellate court reverses. That’s a win. Also, what is a “tribal interest”? That’s a little more in the eye of the beholder. And since I am the beholder, I call it as I see it.
With a few thousand RA hours at my disposal, I could do this going back forever, set it out by appellate court, whether there was a dissenter, results in published versus unpublished opinions, what the majority of the panels’ political affiliations were, and how often the Supreme Court granted cert and reversed, etc. Not going to happen this year, but it will happen.
That reminds me. Nineteen times the Supreme Court granted cert off of tribal interest wins below (no idea out of how many cert petitions). Twice the Supreme Court granted cert off of tribal interest losses below (Patchak and Chickasaw, both cases in which the OSG sought or acquiesced in the petition, and both affirmed).
Certiorari off of Tribal Interest Wins in COAs
6.6 percent of wins end up at the Supreme Court
Certiorari off Tribal Interest Losses in COAs
0.8 percent of losses end up at the Supreme Court