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Supreme Court panel's predictions mostly came true
Wednesday, March 19, 2003

A day after the Supreme Court heard oral arguments in two tribal trust cases last December, a panel of Indian law practitioners and legal scholars got together to discuss what they thought of the affair.

Asked to predict the outcome of the cases, the five experts took out their crystal balls and tried to see into the future. Now that the decisions are out -- 5 to 4 in favor of the White Mountain Apache Tribe of Arizona and 6 to 3 against the Navajo Nation -- find out who was on target and who wasn't.

David Getches
Prediction: "White Mountain 5-4 to affirm, opinion by [Justice Sandra Day] O'Connor with the Navajos losing 6-3 with [Justice Stephen G.] Breyer and O'Connor joining the four predictable votes against the tribes."

Getches, a professor at the University of Colorado Law School, was one of three panelists who were most on target about the way the court ended up voting.

But like the rest, he incorrectly pegged O'Connor as the author of the Apache ruling. And, along with Breyer, she sided with the Navajo Nation.

Although O'Connor, who hails from Arizona, asked the most pressing questions during the oral arguments, she didn't take credit for any of the opinions.

Arlinda Locklear
Prediction: On Apache, a "narrow" 5-4 victory. On Navajo, a 6-3 vote because "I think the tide is against them."

Locklear, the first Native woman to argue before the Supreme Court, was also correct when it came to votes. But she tripped on O'Connor too.

She said Chief Justice William Rehnquist would write the majority opinion in the Navajo case. If he did, he didn't sign it -- Justice Ruth Bader Ginsburg did. He didn't take part in oral arguments due to a recent surgery.

Harry Sachse
Prediction: "I think the Apaches win and I think the opinion's written by Justice O'Connor . . . On Navajo . . . It's more likely that they'll lose."

Sachse, a former Department of Justice attorney now in private practice, was correct about the overall outcome. But on Apache, he couldn't decide whether Justices Antonin Scalia and Clarence Thomas would vote for or against the Apache Tribe. They voted against so he doesn't score points here.

As for Navajo, he incorrectly predicted that Breyer would write the opinion if the tribe lost.

Jim Simon
Prediction: A "fairly favorable" victory for the tribes, with both cases returning to the lower courts for further review. "This is my guess."

Of the panelists, Simon, a former DOJ official, was one of two who were most off-base. During the discussion itself, he was fairly negative about the cases, but his predictions were too positive.

But he was fairly correct about the way the rulings would come out. He said that the court would uphold the government's liability, which it did on the Apache case. He also surmised that one of the cases would end up before the court again, an entirely plausible prediction.

Charles Hobbs
Prediction: "I think both tribes will win." But he was worried that the Navajo Nation would lose on a "trumped up reason."

Hobbs, who won 1983's Mitchell case that paved the way for today's breach of trust claims, was the other overly positive pundit. He got the outcome wrong and said the court would "cut back" somewhat on the Mitchell framework, which didn't happen.

More Punditry Ahead
The next Indian law case before the Supreme Court case is Inyo County v. Bishop Paiute Tribe. Oral arguments will be heard March 31. Tracy Labin of the Native American Rights Fund (NARF) is arranging a panel discussion that same day so watch for predictions on this case soon.

Watch the Navajo/Apache Panel:
Real Video (December 4, 2003)

Navajo Nation Decision:
Excerpt | Syllabus | Opinion [Ginsburg] | Dissent [Souter]

White Mountain Apache Tribe Decision:
Excerpt | Syllabus | Opinion [Souter] | Concurrence [Ginsburg] | Dissent [Thomas] <