As far as I can tell, the Supreme Court Justices in oral arguments in this year's important Indian law case, Plains Commerce Bank v Long Family Land and Cattle Co., were pretty close to laughing Plains' attorney ("Mr. Banker," remarkably enough) out of court.
I'm happy to see that, because an adverse ruling in this case would be very, very bad for the ability of tribal governments to exercise even minimally coherent jurisdiction, something I've written about at some length.
At the same time, I kind of feel for the guy-- because, while he did not correctly describe the current state of the law, he did a pretty good job describing the first derivative of it. He plotted the dots of the various Supreme Court cases, drew the line connecting them, and extrapolated out to the next case. Several times he kind of stammers that he figures the Justices would want to keep going in the direction they've been going. In some areas of law, that's the right argumentative approach- you say "here are the principles underlying the caselaw, they successfully account for the trajectory and give it coherence, and we see that those principles get us this outcome in the case at hand, even though that's not actually what the current rules would say."
In Indian law, the correct answer to that is: "Principles? Coherence?" It's not always clear here that the Justices even remember what their own recent cases say, so they're left just looking at the place Banker wants to take them, not whether that place really does lie on the straight-line path connecting their previous cases. They seem to think it's a ridiculous place, which is true.
Anyway, it does now seem possible that the Court will find that the consent exception in Montana can be satisfied short of a non-Indian expressly choosing Indian law and tribal court jurisdiction. The Court has... not been in the habit of finding that the Montana exceptions could ever really be satisfied, which Banker appeared to be counting on. And it seems possible that the Court will reconcile the genuine tension in its caselaw about the relationship between adjudicatory jurisdiction and regulatory jurisdiction in favor of bringing them into line with each other.
These are both Good Things. Therefore I don't bet that they'll happen. In particular, I'm sure Kennedy is just playing with arguments in his exchanges with Banker-- his own past opinions mean that he's not really skeptical of Banker's view of non-members' rights. Oral argument can be like that sometimes; Justices explore ideas, and it's dangerous to treat that as if they were telegraphing their ultimate votes. But in the meantime, it's nice to see Scalia making Banker squirm, and to see at least some realization of how ridiculous the anti-tribal-jurisdiction arguments can become.
Over at the Legal Times blog, Tony Mauro notes a funny exchange between Roberts and Long's lawyer.