Indian Law Reality Television, or How to Stop Worrying When Losing in the Supreme Court

Document Type

Article

Publication Date

2020

Abstract

In 1997, the American Indian Law Review published three speeches, all given at the FBA's annual Indian Law Conference. They included "The Trend of Supreme Court Decisions in Indian Cases", by Deputy Solicitor General Louis F. Claiborne (1980); "Indian Law in the United States Supreme Court - Experiences in the 1980s and Predictions for the 1990s," by Reid Chambers (1991); and "A review of the 1990s and a Look at What's Ahead," by Doug Endreson (1997). None of these commentators came to this project with rose-colored glasses. Each of them advised listeners frankly that the Supreme Court is not a safe or predictable forum for tribal interests. More than two decades later, their advice remains sound, although frequently unheeded.

The organizers of the 50th anniversary of the Pre-Law Summer Institute asked me in 2017 to revisit those speeches. I happily did so, and I offer here a condensed and updated version of my talk. My conclusion then and now is that Claiborne, Chambers, and Endreson describe a legal environment for tribes that has since passed. The legal environment of the 1960s through the 1990s is a radical outlier in which tribes could actually expect to prevail on occasion. Throughout American history, Indian tribes and individual Indians almost never prevailed in teh supreme court.

But that's not so bad. As David Getches once told me, don't obsess over the Supreme Court. Indians and tribes didn't stop because the Supreme Court ruled against them. Luckily for tribal interests, some Indian law decisions that inspire hundreds of pages of law review and journal critical commentaries don't actually have any impact whatsoever, except perhaps on the parties themselves.

In this way, the Supreme Court is like reality television.

Comments

Work published when author not on Michigan Law faculty.

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