The Bears Ears suit follows several other tribal legal challenges this year against the federal government, including efforts to stop the Dakota Access Pipeline and to improve health care on the Rosebud Sioux Reservation. All of the tribes’ legal challenges this year have failed. That bodes poorly for the five tribes that have taken the Trump administration to court over Bears Ears.
The “haves” usually beat the “have nots” in court
Native tribes exist in an odd semi-sovereign legal state, which often pits tribal rights against the rights of states or the authority of the federal government, or both. Such conflicts are frequently resolved in the courts — where the odds are not in the tribes’ favor.
Legal studies show that when two parties face off in court, the one with the most financial resources and experience is more likely to win. Resources buy better — and often the most expensive — lawyers, witnesses and investigators, and allow for extensive and costly litigation in the first place. That gives advantages to the “haves,” such as state governments, over the “have nots” in court.
In the Bears Ears case of Hopi Tribe et al v. Trump et al, both sides have experience appearing in court. But the government still has a significant advantage: Government lawyers are consummate “repeat players,” which means that, among other things, they have more extensive courtroom experience and more financial advantages than the tribes’ attorneys.
How do indigenous people fare in court?
We used text analysis software to identify all judicial cases involving indigenous people in state supreme courts between 1995 and 2010. We then determined the ideology, the issue in dispute and what kind of opponent the indigenous group faced: individual, business, local government, state government or federal government. We found 496 cases on issues ranging from child custody to water rights. In the 16 that dealt with environmental issues, the tribes prevailed about 50 percent of the time.
As you can see in the figure below, tribes vary in their likelihood of prevailing in court based on what kind of opponents they faced — and what kind of resources those opponents had. Indigenous groups fared well against individuals and businesses, with relatively little disparity in resources between the parties. But when they faced government parties, indigenous peoples lost the majority of the time. In our data, indigenous groups won only about 30 percent of the time against any type of government.
Here are the implications for Bears Ears
Although our results examine state courts, and not federal courts, there is no theoretical reason to suspect our findings cannot be generalized.
If we just looked at past legal challenges, we’d predict that the tribes are unlikely to win against the Trump administration. That’s especially true when the tribes are facing off against both a state and federal government on the other side, as in the Bears Ears case, in which both Utah and the U.S. government are involved.
But this case has some differences that could give the tribes a slightly better chance.
First, the Antiquities Act, passed in 1906, has been used in the past to reduce the size of some national monuments. But those changes were small and not contested in court. No president has ever tried to reduce a monument created under the act by so much. And courts have never before weighed in on whether doing so is legal.
Second, the tribes are not the only parties to sue. Although they are the first movers in Bears Ears, similar suits are being filed by several companies, conservation groups and paleontology organizations. These cases are likely to be consolidated. That may balance the resources just a bit — increasing the odds that the tribes will restore Bears Ears to its original size.
Todd A. Curry is an assistant professor of political science at University of Texas at El Paso whose research focuses on state supreme courts, judicial communications and indigenous law. Find him on Twitter at @DrToddACurry.