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.