Quick Empirical Study of Cert Grants & Denials
We all know that since Cabazon Band in 1987, as Alex Skibine wrote, tribal interests have lost 33 out of 44 cases (not including this Term's cases, if they could even be counted as Indian law cases). But the numbers get much worse if we add in cert. petition grants and denials.
US Law Week lists all the cert. petition grants and denials online dating back to the October 1996 Term. Here's my empirical research for the day. Remember, the chances that any petition for cert. will be granted (I believe) is about 2 percent, maybe a little less now.
Since the October 1996 Term, a party opposing tribal interests who loses at the lower court level but files a petition for certiorari with the Supreme Court has a 19.0% chance of having that petition granted (20 cases out of 105 total tribal wins). Once the case is granted cert., that party opposing tribal interests wins 85 percent of those cases (17 our of 20). Overall, a party that loses to a tribal party has a 16.2% chance of having that decision reversed by the Supreme Court (17 out of 105).
A party representing tribal interests that loses at the lower court level and files a cert. petition has a 4.1% chance that the Court will grant the petition (5 out of 121). Once that petition is granted 4 out of the 5 cases have been reversed, an 80% win rate for tribal interests. Overall, a tribal party has a 3.3% of convincing the Court to reverse the lower court's adverse judgments (4 out of 121).
These numbers include judgments that are vacated (counted as S. Ct. wins or losses), but condense the Kiowa Tribe's three sovereign immunity cases from 1998 into one. Also, intertribal conflicts are excluded.
Additional information from this study indicates that tribal interests have filed petitions seeking review of adverse judgments 121 times, while parties opposing tribal interests have filed 105 petitions. Does this mean tribes are losing that much more at the lower court level? More research needed and it's been a long day.