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TURTLE TALK: Quick and Dirty Commentary on Patchak

Matthew L.M. Fletcher
6/21/12

Four points on today’s decision in Patchak.

First, the solicitor general lost yet another case while acting as tribal trustee. The trust responsibility is in real trouble, despite the Court’s surprising affirmation of Ramah. The Supreme Court does not appear to defer in any way to the office of the solicitor general and especially the Department of Interior in the Indian cases, as I have said before.

Second, a majority of the Supreme Court appears to care nothing about the destabilizing consequences of their decisions. Justice Sotomayor’s dissent laid it all out for the rest of the Court. It’s not like the statutory construction of the Quiet Title Act and the Administrative Procedures Act was inevitable. This was not a plain language decision, but an interpretation. The Court chose this route over others.

Third, the Supreme Court once again has directly challenged Congress on Indian affairs. How many times has the Court said in the last 25 years, we’ve made our decision, now let Congress fix it if they don’t like it. So far, with the exception of the Duro fix, Congress hasn’t fixed anything. As I said before the Senate Committee on Indian Affairs a few weeks ago, Congress needs to step up and take charge of Indian affairs. Right now, the Supreme Court calls the shots.

Fourth, Justice Sotomayor proved today in her masterful and enlightening dissent that she is serious about knowing the practical realities of Indian country. With the only possible contender being Justice Blackmun, Justice Sotomayor may be the only Justice in American history that cares deeply enough about what happens in Indian country to learn about the impacts of the Court’s decisions. This is a common law area of law, and the Court has important policy making responsibilities that it is neglecting, and Justice Sotomayor is doing her homework.

Matthew L.M. Fletcher is a professor of law and director of the indigenous law & policy center at the Michigan State University College of Law.

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tuschkahouma's picture
The parallels between the Gun Lake Potawatomi Tribe and The Poarch Creek Tribe of Indians lie in the fact that both tribes had ancestors who were both awarded parcels of land for loyalty to the US Government. The Gun Lake Potawatomi tribe was awarded a parcel of land in 1821 and the Poarch Creek Tribe was awarded parcels of land in 1824. Many of the historic Aneshnabek tribes weren't federally acknowledged until the 1980's by acts of the US Congress in Michigan and the UP. The IRA option was not extended to the Pokagon and other southern Michigan Potawatomi tribes because the BIA didn't want any tribes located in southern Michigan. The Blanchards Fork(Now Oklahoma Odawa) Odawa people were removed from southern Michigan and western Ohio to Kansas as was the Swan Creek Chippewa tribe of Chief Eshtonoquot in the mid 1830's. The Potawatomis who stayed in southern Michigan were either remnants of small clusters or people who escaped removal and returned home. I've been to Manitoulin Island where many people went to escape removal by the US Government in the 1830's. There was an attempt by the BIA from the 1870's on to not recognize tribes in southern Michigan. Knowing that the reason for no federal recogntion in 1934 in Michigan at least was due to the BIA thwarting attempts for federal recognition for said Aneshnabek communities for a century why do officials not state this in rebuke of the Carceiri ruling? The same goes for the Narragansett Tribe who never had a chance to treaty with the US and wound up a ward of the State of Rhode Island who eventually liquidated the Narragansett tribal lands in 1880 in violation of the Indian Non Intercourse Act of 1790 which eventually led to the US Government joining the Narragansett Tribe in suing for violation of the Indian Non Intercourse Act of 1790 in 1978 leading to a land claims settlement act in 1983 which unfortunately didn't allow total tribal sovereignty due to the meddling of one US Senator Chafee. The Narragansetts tried to get 31 acres of land outside of the 1983 awarded lands in trust in 1991 which triggered the overreaction and overreach by the Carceiri Administration and the subsequent incorrect ruling of the Rehnquist Indian law devotees Roberts, Scalia, and Thomas, who have acted publically like they could care less about Indian Country. A good background on their behavior is Lumbee Professor and Attorney Robert A Williams Jr's book "Like a Loaded Weapon". It shows how their racist tendencies in legal cases currently grew out of William Rehnquist's attitudes two or three decades ago in Indian Law cases.
tuschkahouma