Hope for Indian Tribes in the U.S. Supreme Court?: Menominee, Nebraska v. Parker, Bryant, Dollar General . . . and Beyond

46 Pages Posted: 27 Nov 2016 Last revised: 2 Mar 2019

See all articles by Bethany Berger

Bethany Berger

University of Connecticut School of Law

Date Written: October 5, 2017

Abstract

There has long been speculation that the Supreme Court is hostile to Indian tribes. Between 1990 and 2015, tribal interests lost in 76.5 percent of Supreme Court cases distinctly affecting them; the loss rate rose to 82 percent in first decade of the Roberts Court. With four Indian law cases on the docket last year, Native communities were poised for disaster. Newspapers speculated on why tribes couldn’t win in the Supreme Court. By the end of June 2016, however, tribal interests had lost just one case, won two, and the Court split four-four in a fourth, affirming a lower court decision upholding tribal jurisdiction without opinion.

One Term does not reverse a pattern of decades, and the Court remains a very dangerous place for Indian tribes. But together with other recent majority and dissenting opinions, the Term suggest a resurrection on the modern Court of an old idea: that tribes are a third sovereign in the federal system, and that this sovereignty has significant implications for statutory construction, federal common law, and even constitutional review. This shift is a product of a coordinated effort to familiarize justices with the modern reality of Native governments and highlight the connections between tribal status and the law affecting other sovereigns. It reflects as well that the newer members of the progressive wing come to the Court with more knowledge of federal Indian law than the last.

Work remains to build a coherent theory of third sovereign status on the Court. Given the voting records of the current justices, moreover, a ninth justice, once confirmed, could often be a deciding vote. Voting in federal Indian law does not always accord with traditional progressive-conservative divides, so while a Trump administration nominee will likely tip this balance against tribes, it will not necessarily do so. The President-Elect himself has a dark history of levying false accusations and racial attacks against Indian tribes to protect his own casino interests. But while the Supreme Court is influenced by political tides, it is not the creature of them, and Chief Justice Roberts appears committed to maintaining this. 2016, therefore, remains evidence that the decades-long thumb on the scales against the third sovereign in the Supreme Court may, occasionally, be lifted.

Keywords: American Indians, Federal Indian Law, United States Supreme Court, Judging

JEL Classification: K00, K10, K41

Suggested Citation

Berger, Bethany, Hope for Indian Tribes in the U.S. Supreme Court?: Menominee, Nebraska v. Parker, Bryant, Dollar General . . . and Beyond (October 5, 2017). 2017 University of Illinois Law Review 1901. Available at SSRN: https://ssrn.com/abstract=2874950

Bethany Berger (Contact Author)

University of Connecticut School of Law ( email )

65 Elizabeth Street
Hartford, CT 06105
United States

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