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Factbound And Splitless: The Certiorari Process As A Barrier To Justice For Indian Tribes, Matthew L.M. Fletcher

Matthew L.M. Fletcher

The Supreme Court’s certiorari process does more than help the Court parse through thousands of uncertworthy claims – the Court’s application of the process creates an affirmative barrier to justice for parties like Indian tribes and individual Indians. The negative impact of the certiorari process is all but invisible unless one studies a specific area of constitutional law. This study takes up that challenge. Statistically, there is a near zero chance the Supreme Court will grant a certiorari petition filed by tribal interests. At the same time, the Court grants certiorari in far more petitions filed by the opponents to …

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

American Indian tribes and nations are at a crossroads. One on hand, many tribes like the Cherokee Nation – mired in the politics and law of disenfranchising the Cherokee Freedmen – continue to hold to a citizenry based in race and ancestry. Federal Indian law tends to protect, and encourage, even the worst abuses of this regime. The United States long has adopted Indian blood quantum as a proxy for tribal citizenship, creating unfortunate paradoxes for Indian tribes and their citizens. For example, the Supreme Court just a few days ago in Carcieri v. Salazar held against an Indian tribe …

Race And American Indian Tribal Nationhood, Matthew L.M. Fletcher

Matthew L.M. Fletcher

As American Indian tribal nations develop the capacity to govern their own citizens, and engage in substantial economic and political activities with non-citizens, they are heading toward major roadblocks. Tribal nations, like other nations, seek to regulate the activities of all persons within their territorial jurisdictions, including the power to tax and prosecute those persons, citizen or not. The United States Supreme Court has expressed strong skepticism about the possibility of tribal nations asserting this authority and has placed tight controls on the authority of tribal nations to regulate the activities of non-tribal citizens.

Tribal governments are nations and should …

Factbound And Splitless: Certiorari And Indian Law, Matthew L.M. Fletcher

Matthew L.M. Fletcher

The Supreme Court has long maintained that the certiorari process is a neutral and objective means of eliminating patently frivolous petitions from consideration, but it is well known that the Court is far more likely to grant a cert petition when it questions the outcome below. This qualitative empirical study of preliminary memoranda drafted by the Supreme Court law clerk pool demonstrates the likelihood that the Court’s certiorari process is neither objective nor neutral – and may prejudice certain classes of petitioners. Cert pool clerks applying the subjective certiorari criteria – such as whether there is a legitimate split in …