With Justice John Paul Stevens announcing his retirement from the US Supreme Court this year, the Obama administration will have the opportunity to appoint a second new jurist to the bench. The Tribal Supreme Court Project is hoping the new appointee will help reverse a disturbing trend – Tribal interests losing nearly every case that comes before the Court.
“We view this Court as not favorable on our issues,” explained Richard Guest, senior staff attorney at the Native American Rights Fund. “We had a winning percentage from 2001 to 2005 but now we’re back to a situation where we are zero for five.”
There is a concern that certain justices have an agenda in Indian law cases, he added, noting that Chief Justice John Roberts Jr. has been quoted as asking what is so special about Indian tribes and their relationship to the United States. “If this Court grants review, it appears to not only look to decide the case in front of it, but to extend any ruling to future cases,” said Guest.
This view is supported by a 2009 empirical study done by Matthew Fletcher of Michigan State University College of Law: “Factbound and Splitless: Certiorari and Indian Law.” From 1959, considered the beginning of the modern era of federal Indian law, to 1987, when the Supreme Court decided the major Indian gaming case, California v. Cabazon Band of Mission Indians, reported Fletcher, Indians and Indian tribes won nearly 60 percent of federal Indian law cases. Since the Cabazon decision, the Supreme Court has decided against tribal interests in more than 75 percent of cases.