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16 - Factbound and Splitless: The Certiorari Process As Barrier to Justice for Indian Tribes

from Part IV - (Mis)Understandings

Published online by Cambridge University Press:  11 December 2019

By
Matthew L. M. Fletcher
Edited by
Grant Christensen  and
Melissa L. Tatum
Grant Christensen
Affiliation:
University of North Dakota
Melissa L. Tatum
Affiliation:
University of Arizona
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Summary

Factbound and Splitless: recognizes the US Supreme Court’s preeminent role in announcing federal common law that governs the relationship between tribes, states, and the federal government. However, because the Supreme Court only hears cases that can earn four votes for certiorari, the direction of federal Indian law is controlled as much by the choice to hear a case as by the ultimate decision that is issued. Fletcher examines the Supreme Court’s behavior in Indian law cases at the certiorari stage in order to explain how modern Court behavior is changing the landscape of Indian law without even deciding some of the most important legal issues.

Keywords

certiorariclerkSupreme CourtempiricalRule 10
Type
Chapter
Information
Reading American Indian Law
Foundational Principles
 , pp. 381 - 402
Publisher: Cambridge University Press
Print publication year: 2019

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References

Further Reading

Christensen, Grant, Judging Indian Law: What Factors Influence Individual Justice’s Votes on Indian Law in the Modern Era, 43 U. Tol. L. Rev. 267 (2012).Google Scholar
Epps, Daniel & Ortman, William, The Lottery Docket, 116 Mich. L. Rev. 705 (2018).Google Scholar
Feldman, Adam & Kappner, Alexander, Finding Certainty in Cert: An Empirical Analysis of the Factors Involved in Supreme Court Certiorari Decisions from 2001–2005, 61 Vill. L. Rev. 795 (2016).Google Scholar
Fletcher, Matthew L. M., The Supreme Court’s Indian Problem, 59 Hastings L.J. 579 (2008).Google Scholar
Grant, Emily, Hendrickson, Scott A., and Lynch, Michael S., The Ideological Divide: Conflict and the Supreme Court’s Certiorari Decision, 60 Cle. St. L. Rev. 559 (2012).Google Scholar
Hermann, John R., American Indian Interests and Supreme Court Agenda Setting: 1969–1992 October Terms, 25 Am. Pol. Q. 241 (1997).Google Scholar
Hermann, John R. & O’Connor, Karen, American Indians and the Burger Court, 77 Soc. Sci. Q. 127 (1996).Google Scholar
Kramer, Karl J., Comment, The Most Dangerous Branch: An Institutional Approach to Understanding the Role of the Judiciary in American Indian Jurisdictional Determinations, 1986 Wis. L. Rev. 989 (1986).Google Scholar
O’Brien, David M., Join-3 Votes, the Rule of Four, the Cert. Pool, and the Supreme Court’s Shrinking Plenary Docket, 13 J.L. & Politics 779 (1997).Google Scholar
Palmer, Barbara, The “Bermuda Triangle?” The Cert Pool and Its Influence over the Supreme Court’s Agenda, 18 Const. Commentary 105 (2006).Google Scholar
Riley, Angela, The History of Native American Lands and the Supreme Court, 38 J. Sup. Ct. Hist. 369 (2013).Google Scholar
Skibine, Alexander Tallchief, The Supreme Court’s Last 30 Years of Federal Indian Law: Looking for Equilibrium or Supremacy?, 8 Colum. J. Race & L. 22 (2018).Google Scholar

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