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Navajo Nation leaders reflect on historic Supreme Court session

Tuesday, June 28, 2016

Leaders of the Navajo Nation: Vice President Jonathan Nez, second from left, President Russell Begaye and Council Speaker LoRenzo Bates. Photo from Navajo Nation OPVP / Facebook

The U.S. Supreme Court was surprisingly good to Indian Country during a term that saw a record four Indian law cases on the docket.

But leaders of the Navajo Nation warn that the situation could have been different. The 4-4 tie in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a closely-watched tribal jurisdiction case, reflects the unprecedented situation facing the nation's highest court, which is operating with only eight justices.

“The Supreme Court of the United States was knotted in a decision on Dollar General," Vice President Jonathan Nez said in a press release on Monday. "Although the ruling was favorable to the tribe because of the lower court’s ruling, this decision underscores the need to seat a justice in the Supreme Court immediately."

Navajo President Russell Begaye has already called on the Senate to hold confirmation hearings for Merrick Garland. President Barack Obama nominated the appeals court judge in March in hopes of filling the vacancy left by the passing of Justice Antonin Scalia.

Republicans, however, haven't budged and are refusing to move forward despite ties in Dollar General, a politically-charged immigration controversy, a high-profile labor union dispute and a debt matter. All of those cases could have gone another way with a full slate of justices.

But not just any justice will do, argued Delegate Amber Kanazbah Crotty of the Navajo Nation Council. All of the members of the Supreme Court must understand the issues facing Indian Country, she said.

"The makeup of the U.S. Supreme Court is vital," Crotty said on Monday. "We need justices that will recognize the sophistication of tribal courts and its system."

Besides Dollar General, whose outcome benefited the Mississippi Band of Choctaw Indians, tribal courts were at issue in US v. Bryant, a domestic violence case. By a unanimous vote, the Supreme Court affirmed the use of tribal convictions in the federal system.

"Convictions at the tribal court level solidify that repeat offenders in Indian Country will receive appropriate sentences and that victims of violence are provided justice," Crotty said.

Council delegates also were thankful for the high court's decision in Fisher v. University of Texas at Austin, a long-running affirmative action case. By a 4-3 vote, the justices determined that educational institutions can employ race-conscious admissions policies in order to create a diverse student body.

"It is a good acknowledgement throughout Native America, especially pertaining to our Navajo citizens seeking higher education, it recognizes who they are, where they come from, and their culture," Delegate Jonathan Hale said of the close ruling. "It is a win for the Navajo people."

Of the four Indian law disputes heard by the Supreme Court this term, the decisions in Bryant, the domestic violence case, and Nebraska v. Parker, a reservation boundary case involving the Omaha Tribe were outright victories for Indian Country. Tribal interests are also welcoming the tie in Dollar General because it affirmed a lower court victory and prevented further erosion of their rights.

The only outright loss was dealt to the Menominee Nation in Menominee Indian Tribe of Wisconsin v. US, a contract support costs case. But the decision did not disturb the Supreme Court's precedents in two prior self-determination cases and it did affect the tribe's ability to pursue underpayments from the Indian Health Service for years that weren't in question during the litigation.

U.S. Supreme Court Decisions:
Dollar General v. Mississippi Band of Choctaw Indians (June 23, 2016)
US v. Bryant (June 13, 2016)
Nebraska v. Parker (March 22, 2016)
Menominee Tribe of Wisconsin v. United States (January 25, 2015)