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Supreme Court considers petitions in slew of Indian law cases

Tuesday, September 22, 2015

A view of the U.S. Supreme Court. Photo by Indianz.Com

The U.S. Supreme Court already has two Indian law cases on its docket and is considering more as a new term approaches.

The term officially starts October 5. But the justices are meeting next Monday to review petitions in hundreds of pending cases, including five that are being watched across Indian Country.

The so-called "long conference" is notable due to the sheer number of petitions considered and the fact that almost all of them end up being rejected. In a post on Turtle Talk, professor Matthew Fletcher said he wasn't aware of any Indian law grants from a long conference since 2007.

If that record holds, it would represent a positive development for four tribes whose interests are at stake next week. They won their cases in the lower courts so a rejection would solidify their respective victories.

Veterans of the Omaha Tribe of Nebraska participate in an annual parade. Photo from Facebook

The Omaha Tribe of Nebraska falls into this category. The 8th Circuit Court of Appeals last December ruled against a group of non-Indians who claimed the reservation was diminished by an act of Congress in 1882.

The decision opens up non-Indian businesses to tribal jurisdiction -- more specifically, a tax on the sale of liquor. That's why the tribe and the Obama administration are urging the justices not to hear Nebraska v. Parker.

The Supreme Court hasn't heard an reservation boundary dispute since the 1990s. So a grant of the petition would spell trouble for the tribe.

The Kialegee Tribal Town is also hoping the justices won't hear Oklahoma v. Hobia. The 10th Circuit Court of Appeals last December ruled that tribal leaders are protected by sovereign immunity as part of a gaming dispute with the state.

Princesses from the Kialegee Tribal Town in Oklahoma. Photo from Facebook

The issue is fresh in the minds of the high court -- in a similar case, the justices last May held that the state of Michigan could not sue the Bay Mills Indian Community. Yet Oklahoma Attorney General Scott Pruitt (R) is hoping for a grant even though the Kialegees have dropped plans for the casino that sparked the dispute.

Another Republican attorney general, Brad D. Schimel of Wisconsin, is behind the third case in which a tribe was victorious. He's asking the Supreme Court to hear an electronic gaming dispute with the Ho-Chunk Nation.

The tribe won the right to offer video poker games at its facility in Madison. The 7th Circuit Court of Appeals last April held that the machines could not be regulated by the state.

The Oklahoma petition and the one in Wisconsin v. Ho-Chunk Nation face tough odds because the Supreme Court almost always rejects gaming cases. Prior to Michigan v. Bay Mills Indian Community from 2014, the last case that directly implicated the Indian Gaming Regulatory Act was Chickasaw Nation v. US in 2001.

Veterans present the colors at the Ho-Chunk Nation's general council meeting in Madison, Wisconsin, on September 19, 2015. Photo from Facebook

The last case in the victory category affects the Santa Ynez Band of Chumash Indians in California. At issue is a somewhat obscure dispute in which Chairman Vincent Armenta was accused of making false statements in a bankruptcy proceeding.

The 9th Circuit Court of Appeals refused to sanction Armenta for the alleged conduct. But Vincent Torres, who used to do construction work for the tribe until all of his contracts were cancelled, wants the justices to accept his petition, though it appears the least likely to be accepted.

The fifth petition being considered next week is one that tribal interests want the Supreme Court to grant. The case is Sac and Fox Nation v. Borough of Jim Thorpe and it will determine whether the sons of the legendary athlete Jim Thorpe can rebury him in Oklahoma as he had wanted.

Thorpe died in 1953 and was about to be buried in the Sac and Fox Nation cemetery when his widow took his body during a tribal ceremony. She eventually had his remains interred in a newly created municipality in Pennsylvania in 1957.

The Jim Thorpe Memorial in Jim Thorpe, Pennsylvania. Photo by Doug Kerr / Flickr

The Borough of Jim Thorpe has refused to return Thorpe to surviving family members under the provisions of the Native American Graves Protection and Repatriation Act. The 3rd Circuit Court of Appeals agreed that the law does not cover the remains of the Olympic gold medalist.

The Supreme Court has never heard a case involving NAGPRA, which became law in 1990. The Jim Thorpe case has attracted significant interest from prior and current members of Congress, as all as religious freedom groups.

"Since when does a court get to decide that someone’s religious beliefs are absurd?" attorney Stephanie Barclay of the Becket Fund for Religious Liberty, which is urging the Supreme Court to hear the matter, said in a press release. "No American’s faith should be mocked by our courts. Jim Thorpe said he wanted to be buried with his family and his tribe, and that should have been the end of it."

Typically, the Supreme Court announces which petitions it has granted the day after a conference. If the justices accept any of the five cases up for consideration next week, they would join Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case, and Menominee Indian Tribe of Wisconsin v. US, a contract support costs case.