Wednesday, April 04, 2007

The S. Ct.'s New Indian Law Agenda?

A few months ago, I offered the possibility that the Supreme Court's willingness to accept Indian law cases may decline now that two of the three "westerners" have left the Court. Rehnquist, C.J. and O'Connor, J. are out, leaving just Kennedy, J.

I did some "empirical" research -- a search on USLW (using USLW's subject areas) -- and found that since the 1996 Term (that's as far as the USLW online search engines go), the Court has decided or vacated a lower court opinion 27 times in approx. 245 cases, just over 10 percent. Given that the going rate on cert. grants is around four percent, still a disproportionate number.

However, since the Court's grant of cert. in the Wagnon v. Prairie Band cases on Feb. 28, 2005, petitioners in Indian law cases are zero for 48. The USLW's subject area ("Native Americans") excluded the Zuni school case, the UDV case, and the BP case, rightfully so, I suspect.

Those cert. denials included what could have been "Lara II," challenges to Section 5 of the IRA, more than a few Cobell appeals, New York land claims, tax/treaty cases, gaming cases, and ICRA cases. This may be the first Term since the 1960s where the Court does not accept any Indian law cases.

Zero for 48. Interesting.


At April 05, 2007 2:04 PM, Blogger Robert N. Clinton said...


Fascinating bit of empirical research. Given the tenor of many of the Supreme Court's decisions in the previous twenty years, 0 for 48 actually sounds pretty good. One suspects that the Supreme Court Project has had something to do with warning off many close and meritorious petitions.


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