Thursday, March 29, 2007

Is the Supreme Court getting better because of the Tribal Supreme Court project?

Do you think the Supreme Court is getting better because of tribal advocacy? After Atkinson Trading Post v. Shirley and Nevada v. Hicks, the NCAI and NARF helped to create the tribal supreme court project to co-ordinate litigation there. Since then, by my count, the tribal win-loss rate has been more balanced than the 77% loss rate that David Getches wrote about. I count it as either as about 60% loss/40% win, if you count Inyo County as a loss, or 50/50 if you count it as a punt. (In other words, there were wins in United States v. Lara (2004), United States v. White Mountain Apache Tribe, 537 U.S. 465 (2003), and Cherokee Nation of Oklahoma v. Leavitt, 543 U.S. 631 (2005), losses in City of Sherrill v. Oneida Indian Nation, 544 U.S. 197 (2005); United States v. Navajo Nation, 537 U.S. 488 (2003), Wagnon v. Prairie Band Pottawatomie Nation, 546 U.S. 95 (2006), and a nominal loss that was more of a punt in Inyo County v. Paiute-Shoshone Indians of the Bishop Community, 538 U.S. 701 (2003).) It looks a little worse when you take into account the significance of these cases and the extent to which they altered the legal landscape. I would say that Sherrill was extremely significant, and Wagnon, another loss, was to a lesser extent, and that only Lara is as significant on the win side. Do other people read the record the same way? If so, what explains this? Is it effective advocacy by the Supreme Court project? Is it success in keeping cases out of the Supreme Court? (Although Hicks and Atkinson were both cases that the tribal interests won below, so perhaps couldn't have been kept out of the Court.) Is it that Justice Rehnquist was ill, and so was not exercising as much force on the Court? Or is it just that having lost so much in the last 20 years in the Court, tribes don't have much significant left to lose?


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