December 28, 2007

Courts prejudiced against Indians

Fletcher:  Supreme Court's clerks find Indian law unimportantBecause more than 80 percent of Indian law cases arise in the West, where there are only three federal circuit courts of appeals, few splits in authority arise, rendering most appeals "splitless." Moreover, Indian law fact patterns tend to apply to one tribe only, limiting the impact of the appeals. In addition, it appears that the Supreme Court's clerks--most of whom are educated in elite East Coast schools (there has never been an American Indian Supreme Court clerk)--do not find Indian law cases to be important, except when the petitioner is a state or local government opposing a tribal interest such as a tribe or a tribal member.

What this means is that the clerks almost never recommend that the court decide to hear a case when the petitioner is an Indian tribe or an Indian because the petition is "splitless" or just unimportant. From 1986 to 1993, the court decided to hear one appeal out of more than 80 filed by Indian tribes and individual Indians.

Conversely, when a state or local government appeals a case it lost to a tribe or a tribal member, the court granted the petition around 75 percent of the time. Perhaps this is part of the explanation for why tribal interests have lost the vast majority of their cases before the court since 1987.

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