Lawsuit Seeks Background on DOJ 'Apology' in Supreme Court Indian Cases

Nat'l Law Journal
LegalTimes
Freedom of Information Act suit seeks records about Neal Katyal's remarks in 2011.

A Native American group has gone to court to shine light on a purported "confession of error" by then-acting U.S. Solicitor General Neal Katyal in 2011 in which he said his office made misrepresentations to the U.S. Supreme Court in decades-old Indian law cases.

The California Indian Law Association filed a Freedom of Information Act lawsuit in federal district court in Washington on April 10 challenging the disclosure of records about Katyal’s statement. Katyal made his remarks in a video for the Federal Bar Association's annual Indian law conference in April 2011.
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According to the complaint, Katyal made an apology or "confession of error" for the solicitor general's role in two Supreme Court cases that were setbacks for tribal sovereignty: United States v. Sandoval, a 1913 decision that limited tribal property rights in New Mexico, and the 1955 ruling in Tee-Hit-Ton Indians v. United States, which rejected an Alaskan tribe's Fifth Amendment claim seeking compensation for timber taken on tribal lands.

"Tee-Hit-Ton was probably the worst case in the 20th century" for Native American tribes, said Matthew Fletcher, a professor at Michigan State University College of Law, and director of its indigenous law center. Fletcher solicited Katyal's speech for the 2011 event. There, and at most other Indian law conferences, discussion often turns to the Supreme Court's "terrible record in Indian tribal matters," Fletcher said.

"I was pretty surprised when I heard Katyal's talk," Fletcher recalled. "It was very much an apology. He talked about misrepresentations to the court, and he said the U.S. had a trust relationship with tribes that comes into conflict with the department's litigation positions."
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The California Indian law group first sought documents about Katyal's speech—including its text—in 2011 under the Freedom of Information Act. In April 2012, the Office of the Solicitor General (OSG) released 78 pages, 34 of which were completely redacted, according to the lawsuit.
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From the lawsuit:

“The OSG did not disclose any text or recording of the Katyal Speech or any records concerning the content, preparation, or presentation of it other than the partly redacted emails. The OSG did not explain how it conducted its search or why no disclosable record of the content or presentation of the Katyal Speech could be located.”

... The association is affiliated with the Hoopa Valley Tribe.

"We should know how this decision was made," Grove said. Katyal's confession of error, he said, is "likely to have significant implications for other cases," but because of the dearth of documentation, its impact has not yet been felt.

A confession of error could weaken the precedential value of a case. Both decisions mentioned by Katyal have been cited hundreds of times in other federal court rulings.
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