Indian and Aboriginal Law
There has long been concern that the U.S. Supreme Court is hostile to Indian tribes. Between 1990 and 2015, tribal interests lost in 76.5% of Supreme Court cases distinctly affecting them; the loss rate rose to 82% in the 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 could not 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 suggests 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 to 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, Justice Neil Gorsuch may often be a deciding vote. Voting in federal Indian law cases does not always accord with traditional progressive-conservative divides, however, and Justice Gorsuch's record suggests that he will be more open to tribal concerns than the late Justice Antonin Scalia. The President himself has a dark history of levying false accusations and racial attacks against Indian tribes to protect his own casino interests, and the early actions by his administration suggest hostility to tribal 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. The decisions of 2016, therefore, remain evidence that the decades-long thumb on the scale against the third sovereign in the Supreme Court may, occasionally, be lifted.
Berger, Bethany, "Hope for Indian Tribes in the US Supreme Court: Menominee, Nebraska v. Parker, Bryant, Dollar General … and Beyond" (2017). Faculty Articles and Papers. 376.