Document Type

Article

Publication Date

2025

Abstract

There is something irritatingly wrong with Indian law practice at the Supreme Court.

Oral argument at the Supreme Court is a bitterly unpleasant affair for Indigenous people and tribal advocates for a lengthy variety of reasons. It is canonical that tribal advocates must attempt to avoid Supreme Court review; the strategic thinking is that the Court is the last place an Indian tribe would ever want to be. No Indigenous person has argued a case before the Supreme Court since 2001, approaching a quarter century. Only a tiny handful of Indigenous people have ever clerked for a Supreme Court justice. Some justices overtly denigrate, often unintentionally, tribal interests because of ignorance of tribal nations and their citizens. The precedents over which the parties argue are soaked in a nasty history of bigotry and misrepresentation. The Department of Justice, legally owing a duty of protection (known metaphorically as a trust responsibility) to tribal nations and individual Indians, flatly declines to respect its duties. There has never been a tribal citizen with a political appointment in the Justice Department, and the Office of the Solicitor General has never even hired a tribal citizen to serve in a fulltime attorney position. The Court is far more likely to grant review in cases where a tribal interest won below than when an anti-tribal interest prevailed. Respected jurists who have decided dozens of Indian law cases demonstrate they have learned nothing at all from those past cases by continuing to ask basic questions with simple answers. Every argument seems to be an exercise in theorizing any and every plausible reason to rule against tribal interests. Justices with reputations for sober, staid images seemingly lose their tempers when tribal advocates make a powerful point. Even off-the-cuff, seemingly improvised anti-tribal theories raised by no party at any stage of the litigation suddenly become decision rules. Textualist, originalist judges suddenly point to post-enactment statements of federal agency bureaucrats as the controlling interpretation. Worst of all (although there is more), outcomes are seemingly random.

Weirdly, in the past decade or so, tribal interests have prevailed in a majority of the cases before the Supreme Court. Some of the most consequential cases have come down in the last decade, all of them favoring tribal interests. Ostensibly, the Roberts Court is a textualist court, which benefits tribal interests when they have treaty language or statutory language backing up their positions. Even so, the Court is known to deviate from the text and impose its own policy preferences on Indian country.

Still, flush with Trump-appointed justices, Clarence Thomas, and Samuel Alito, the Court has signaled that no precedent is safe. The foundational principles of federal Indian law, many of which predate the existence of the United States, are open to question and potential reversal. Nothing is sacred. Even so, a bad decision usually isn't the end of the world. The Court's collective lack of expertise in federal Indian law is nothing compared to its lack of expertise in how its decisions affect real people on the ground in Indian country, or even how federal bureaucrats will deal with the new decisions. Ironically, as a result, even the Court's plainest rejections of tribal interests often mean nothing as tribal advocates easily find a way around the Court's shallow reasoning. Perhaps more shockingly, tribal advocates can simply ask and receive from Congress a statutory "fix" to a bad decision. I once wrote, only partly in jest, that for tribal nations, Supreme Court cases are like reality television. It can be exhilarating or painful to watch, but very little of what happens means much to real people.

This essay offers yet another proposal for Supreme Court reform. My proposal is rooted in a preference for subject matter expertise in judging. Drawing from arbitration practice, I propose a system in which the parties to federal court litigation - from federal district court all the way to the Supreme Court - negotiate and choose judges from a pool of subject matter experts. The pool would consist of Article III judges who develop subject matter expertise in a given field, say, intellectual property or federal Indian law, and who are available to hear cases over which they are experts, not generalists. Although seemingly radical, there are already formal and informal models for this structure, namely the Federal Circuit, the D.C. Circuit, state courts of criminal appeals, tribal courts, and of course arbitration itself.

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