NARF Marks Tribal Supreme Court Project 25th Anniversary

• The Native American Rights Fund recently celebrated the 25th anniversary of the Tribal Supreme Court Project.
• The project was established to create infrastructure for better outcomes for tribal interests in Supreme Court litigation.
• Historically, tribal interests faced significant structural disadvantages at the Supreme Court, often losing unanimously.
• Scholarship by the late David Getches showed tribal interests had lower success rates than convicted criminals before the project.
• In 2001, tribal interests lost five of six cases, including four unanimous decisions like *Nevada v. Hicks*.

For many decades, legal experts who sympathized with tribal causes consistently advised Indigenous nations to avoid the nation's highest court whenever possible, citing significant structural disadvantages inherent in the system.

The Native American Rights Fund (NARF) recently marked the 25th anniversary of the Tribal Supreme Court Project (TSCP), an initiative specifically designed to cultivate a robust infrastructure aimed at improving outcomes for tribal interests in Supreme Court litigation. For many decades, legal experts who sympathized with tribal causes consistently advised Indigenous nations to avoid the nation's highest court whenever possible, citing significant structural disadvantages inherent in the system.

These disadvantages largely stemmed from centuries of legal precedents, which, as Justice Neil Gorsuch recently observed, arose from the "atmosphere of their times," referring to the pervasive influence of colonialism. This historical context created a challenging environment for tribal sovereignty and rights within the federal judiciary.

The impetus for the TSCP emerged from a critical meeting in 2001, held in the immediate aftermath of the September 11th attacks. During this gathering, tribal leaders and advocates convened to critically assess the state of Indigenous advocacy before the Supreme Court, recognizing an urgent need for a more effective strategy to navigate the complex legal landscape.

Prior to the project's inception, extensive scholarship by the late prominent Indian law scholar David Getches revealed a stark reality: tribal interests faced a lower probability of success at the Supreme Court than even convicted criminals. Compounding this grim statistic, tribal nations frequently experienced losses through unanimous or nearly unanimous decisions by the justices, indicating a broad consensus against their positions.

The year 2001 itself served as a stark illustration of these challenges. In that single year, tribal interests suffered defeats in five out of six cases brought before the Supreme Court. Four of these adverse rulings, including significant cases such as *Nevada v. Hicks*, *C&L Enterprises v. Shirley*, *Chickasaw Nation v. United States*, and *Dept. of the Interior v. Klamath Water Users*, were decided unanimously against tribal nations.

Even when the United States government chose to align itself with tribal interests in these Indian law Supreme Court litigation matters, it often encountered similar setbacks. Furthermore, the consistent composition of the Supreme Court's roster, which remained unchanged from 1994 until 2005, appeared to solidify the court's skeptical posture toward tribal claims, making the path to favorable tribal interests SCOTUS outcomes exceptionally difficult.

The Tribal Supreme Court Project was thus conceived as a direct and strategic response to these deeply entrenched systemic challenges. Its core mission was to build the necessary infrastructure and expertise to counter the historical pattern of unfavorable rulings and to enhance the capacity of tribal nations to effectively advocate for their rights at the highest judicial level.

By establishing this framework, the project aimed to equip tribal interests with better tools and strategies, moving beyond the previous advice to simply avoid the Supreme Court. This proactive approach sought to transform the landscape of Indian law Supreme Court litigation, striving for more equitable and just results for Indigenous communities.

Lawyers representing tribal nations or involved in Indian law litigation should understand the historical disadvantages and strategic efforts, like the Tribal Supreme Court Project, that have shaped tribal interests' success at the Supreme Court. This context is crucial for advising clients on litigation strategy and assessing potential outcomes in cases involving tribal sovereignty and rights.

Source: Original reporting via The Tribal Supreme Court Project