Supreme Court Update Memorandum Available


At present, the U.S. Supreme Court is in summer recess, with the October 2009 Term scheduled to start on Monday, October 5, 2009. The big news continues to be the addition of a new Associate Justice to the Court. Last week, the Senate Judiciary Committee conducted four days of hearings for the confirmation of Judge Sonia Sotomayor to replace Justice David Hackett Souter. The Senate Judiciary Committee is scheduled to mark-up the nomination of Judge Sotomayor this week, with a final Committee vote next week. The full Senate will likely hold its final roll call vote on her confirmation before the August recess (by August 7, 2009).

As reported in the last update, Judge Sotomayor is considered a centrist and pragmatist, in the mold of a Justice Souter. NARF conducted an extensive review of her record which reveals that she has had very little exposure to, or experience in federal Indian law. Our research of her years as an Assistant District Attorney, as an attorney in private practice, or as a federal district court judge has not uncovered any cases dealing with issues pertaining to Indians or Indian tribes. During her tenure on the Second Circuit, Judge Sotomayor participated in only a handful of cases involving Indians, Indian tribes, or issues involving some aspect of federal Indian law. NARF has prepared a memo which provides more background information and a summary of her Indian law cases, a copy of which can be obtained by contacting Richard Guest at

The approach of the October 2009 Term also provides an opportunity to review the work of the Tribal Supreme Court Project during this past term, and since the beginning of the Roberts’ Court era in 2005. During the October 2008 Term, the Court issued three Indian law decisions – ruling against tribal interests in all three cases. The Tribal Supreme Court Project coordinated resources and developed strategy in each case at the merits stage, with NCAI appearing as an amicus party in all three cases and NARF preparing amicus briefs in two of the three cases. It is significant that in all three cases – United States v. Navajo Nation, State of Hawaii v. Office of Hawaiian Affairs and Carcieri v. Salazar – the tribal interests had been upheld by the lower courts of appeal with no conflict between the lower courts on the legal issues presented in each case. This development is a continuation of a disturbing trend in Indian law cases granted review since Chief Justice Roberts joined the Court (tribal interests have lost in two other cases – Plains Commerce Bank v. Long Family Land & Cattle Co. and Wagnon v. Prairie Band Potawatomi Nation – under similar circumstances). At present, tribal interests are 0 for 5 in the Roberts’ Court!

At present, the Tribal Supreme Court Project continues to dedicate substantial resources in the wake of the Court’s disastrous decision in Carcieri v. Salazar. In Carcieri, the Court held that the authority of the Secretary of the Interior to take land in trust for Indian tribes under the provisions of the Indian Reorganization Act (“IRA”) is limited to tribes that were “under Federal jurisdiction” in June 1934, the date the IRA was enacted. NCAI and NARF are coordinating tribal efforts to pursue a legislative “fix” to reverse the Court’s damage to Congress’ overall policy of Indian self-determination and economic self-sufficiency. This legislative fix will clarify that the benefits of the Indian Reorganization Act are available to all Indian tribes, regardless of how or when they achieved federal recognition, and retroactively ratify all past decisions made by the Secretary on behalf of tribes pursuant to the IRA. As we pursue this legislative fix, the Project remains vigilant in persuading the Department of the Interior to adopt a broad, inclusive definition of “under Federal jurisdiction” in relation to pending applications to acquire lands in trust. READ MORE