We previously posted on four possible Supreme Court nominess after President Obama’s election — Judges Wood and Sotomayor, Dean Kagan, and former SG Waxman. We update those materials, and add a few more possibilities (Judges McKeown and Wardlaw, and Professors Karlan and Sullivan). In no particular order….
1. CA2 Judge Sonia Sotomayor
Judge Sotomayor has written the majority opinions in two unexceptional Indian law cases, Catskill Development v. Park Place Entertainment (2008 ) and United States v. White (2001). Catskill Development involved the authority of the National Indian Gaming Commission to review and opine on gaming management contracts, and White involved the federal prosecution of Mohawk Indians for failure to report income to the IRS. Judge Sotomayor has some Indian law exposure, but not on anything controversial.
Judge Sotomayor also voted with the majority in Bassett v. Mashantucket Pequot (2000), a case affirming the sovereign immunity of the tribe.
2. CA9 Judge Kim McLane Wardlaw
Judge Wardlaw’s Indian law record is brief, and not very favorable to tribal interests. Her voting pattern is closer to Justice Kennedy, I suspect, than Justice Souter’s, in Indian law cases. She wrote the majority opinion in Barona Band v. Yee, 528 F.3d 1184 (9th Cir. 2008), holding that states may tax the construction materials used to build tribal casinos. She joined the en banc majority (unanimous) in Navajo Nation v. Dept. of HHS, 325 F.3d 1133 (9th Cir. 2003) (en banc), an opinion authored by Judge McKeown (see below). She joined the dissent inBugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), which would have held against the Tribe in an important jurisdiction case, contrary to Judge McKeown, who joined the majority.
She did join the majority in Pit River Tribe v. United States Forest Service, 469 F.3d 768 (9th Cir. 2006), favoring the Tribe in an environmental case. And she joined the majority in United States v. Blaine County, Mont., 363 F.3d 897 (9th Cir. 2004), favoring American Indians in a voting dilution case.
3. CA9 Judge M. Margaret McKeown
Judge McKeown’s record in Indian law cases is extensive — and checkered. She has written the majority opinion in several Indian law cases in the Ninth Circuit. Her voting pattern is fairly similar to Justice Souter’s.
Her more recent opinions tend to go against tribal interests. In Philip Morris v. King Mountain Tobacco, she wrote the opinion reversing a district court decision that would have remanded a tribal court jurisdiction case back to tribal court, holding that the tribal court did not even have colorable jurisdiction over Philip Morris. In San Carlos Apache Tribe v. United States, 417 F.3d 1091 (9th Cir. 2005), she wrote the majority opinion holding there is no private cause of action to protect tribal sacred sites under the National Historic Preservation Act. In Doe v. Mann, 415 F.3d 1038 (9th Cir. 2005), she wrote the majority opinion holding that state courts in PL 280 states can have concurrent jurisdiction with tribal courts over ICWA cases. In Navajo Nation v. Dept. of HHS, 325 F.3d 1133 (9th Cir. 2003) (en banc), she wrote the majority opinion denying the Nation’s claim that the HHS should contract its TANF funds through the self-determination act. In County of Lewis v. Allen, 163 F.3d 509 (9th Cir. 1998) (en banc), she wrote an en banc opinion rejecting tribal court jurisdiction over a state police officer, sort of a precursor to Nevada v. Hicks.
Many of her earlier opinions favored tribal interests. In United States v. Becerra-Garcia, 397 F.3d 1167 (9th Cir. 2005), she wrote the majority opinion recognizing the authority of tribal officers to stop and detain nonmembers; in that case, persons conspiring to transport illegal aliens. In Quinault Indian Nation v. Grays Harbor County, 310 F.3d 645 (9th Cir. 2002), she wrote the opinion striking down the county’s tax on the transfer of tribal forest land to the United States in trust, reversing a lower court decision. In EEOC v. Karuk Tribe Housing Authority, 260 F.3d 1071 (9th Cir. 2001), she wrote the opinion holding that the Tribe did not enjoy immunity from the EEOC, but held that the ADEA did not apply to the Tribe, again reversing a lower court judgment. In United States v. Enas, 255 F.3d 662 (9th Cir. 2001) (en banc), she wrote the lead opinion affirming the Duro Fix, reversing a lower court judgment and overruling Ninth Circuit precedent. In Agua Caliente Band v. Hardin, 223 F.3d 1041 (9th Cir. 2000), she wrote the opinion reversing a lower court judgment dismissing a tribal challenge to a state tax under the Eleventh Amendment, holding that the Ex parte Young exception applied. In United States v. Idaho, 210 F.3d 1067 (9th Cir. 2000), she wrote the opinion (later narrowly upheld by the Supreme Court) holding that the Coeur d’Alene Tribe retained rights to submerged lands in Lake Coeur d’Alene.
Judge McKeown joined the majority in United States v. Fiander, reversing a district court order dismissing a federal indictment against a tribal member under RICO and the federal contraband cigarettes statute. She joined Judge Gould’s panel opinion in Smith v. Salish Kootenai College, 378 F.3d 1048 (9th Cir. 2004), rejecting tribal court jurisdiction over an on-reservation tort claim, an opinion later reversed en banc. She joined the majority in Ramsey v. United States, 302 F.3d 1074 (9th Cir. 2002), reversing a lower court decision finding a treaty right immunity from taxation. She joined the majority (of a panel including former Justice White) rejecting tribal court jurisdiction in Burlington Northern R. v. Red Wolf, 196 F.3d 1059 (9th Cir. 1999).
However, she did join an8-3 en banc majority in Bugenig v. Hoopa Valley Tribe, 266 F.3d 1201 (9th Cir. 2001) (en banc), reversing a panel decision that the Tribe did not have jurisdiction over a nonmember timber bandit. And in Allstate v. Stump, 191 F.3d 1071 (9th Cir. 1999), she joined a majority applying the tribal court exhaustion doctrine and remanding a tort claim against a nonmember back to tribal court.
4. USSG Elena Kagan
Solicitor General Kagan does not appear to have worked on any Indian law cases, 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 puts her in the position of managing the Oneida Chair at Harvard Law School.
5. 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. In Sokaogon 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. Most recently, 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.
Without a doubt, Judge Wood’s opinions in her several Indian law cases demonstrate that she is very 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.
6. Professor Pamela Karlan
Very little Indian law experience. One doesn’t become a famed law professor writing in Indian law. But she is part of the term petitioning for cert in the Arizona Snowbowl case, Navajo Nation v. USFS.
7. Professor Kathleen Sullivan
Ditto. Her experience is working on Doe v. Kamehemeha Schools, 470 F.3d 827 (9th Cir. 2005), for the school.