Native women rallied on the steps of the U.S. Supreme Court as the justices heard Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case, on December 7, 2015. Photo by Indianz.Com (CC BY-NC-SA 4.0)

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Turtle Talk: Justice Kennedy was terrible for Indian Country

Friday, June 29, 2018

Writing on the Turtle Talk blog, professor Matthew Fletcher confirms his preliminary research into Anthony Kennedy: the retiring justice was terrible for Indian Country in his 30 years on the U.S. Supreme Court.

Of 55 Indian law cases decided by the court between 1988 and 2018 Kennedy ruled against tribes 45 times, according to Fletcher. That was more than 80 percent of the time.

"Justice Kennedy’s voting record was overwhelmingly oppositional to tribal interests," Fletcher wrote.

Even when Kennedy sided with tribal interests, his views were negative, according to Fletcher. In United States v. Lara from 2004, for example, he questioned whether Congress can recognize tribal jurisdiction over all Indians.

"To hold that Congress can subject him, within our domestic borders, to a sovereignty outside the basic structure of the Constitution is a serious step. And when it came to tribal jurisdiction over all non-Indians," Kennedy wrote of Billy Jo Lara, who had unsuccessfully challenged another tribe's authority to prosecute him.

And when it came to tribal jurisdiction over non-Indians, Kennedy was virulently opposed, according to Fletcher. That was evident in oral arguments during Dollar General Corporation v. Mississippi Band of Choctaw Indians, a pivotal case from the October 2015 term.

Based on his "screaming/yelling/lecturing" during the December 7, 2015, hearing, Fletcher said "Kennedy was so disturbed by tribal jurisdiction over non-Indians and non-Indian businesses that he angrily wanted to protect a non-Indian sexual predator from the horror of being subject to a tort claim in tribal court."

As is turns out, Kennedy didn't have to put his anti-tribal views on record. With the court down to eight members following the death of Antonin Scalia, the justices deadlocked 4-4 in the case and no one issued any opinions.

With Kennedy out the door, President Donald Trump is jumping at the opportunity to nominate another conservative jurist. Republicans in the Senate are seeking to confirm a new justice in time for the Supreme Court's upcoming term, which starts in October. Three Indian law cases are already on the docket.

Read More on the Story:
Reflections on Justice Kennedy’s Indian Law Legacy (Turtle Talk June 29, 2018)