Appeals court hears slew of Indian cases amid focus on Supreme Court nominee

Thursday, March 23, 2017

Wednesday was just another busy day for Neil Gorsuch and the federal appeals court where he has served as a judge for a decade.

While Gorsuch was being questioned in the nation's capital about his qualifications for the U.S. Supreme Court, his colleagues back in Colorado were hearing not just one but three Indian law controversies. One of them in fact was a case he mentioned more than once during his lengthy confirmation proceeding.

In writing the unanimous decision in Fletcher v. U.S., Judge Gorsuch sided with citizens of the Osage Nation as they went up against a powerful adversary. He ruled that they are entitled to a historical accounting of their trust funds by their own trustee, better known as the federal government.

The government, not surprisingly, isn't entirely happy with the outcome. Although the Department of Justice did not appeal Gorsuch's ruling to the Supreme Court, taxpayer-funded attorneys have been trying to limit the accounting in a way that would severely undercut the landmark victory secured by the Osage plaintiffs.

A sign on the Osage Nation in Oklahoma. Photo: Jimmy Emerson

As Amanda Proctor, an Osage citizen who is serving as co-counsel in the case, put it: "The issue on appeal is whether the accounting of Osage mineral trust income starts yesterday or in 1906," with 1906 being the year the United States took it upon itself to manage the resource-rich lands of the Osage people in Oklahoma.

A limited accounting would mean less work for the government and it would deprive the Fletcher plaintiffs of the monetary worth of the accounting. A similar case filed by the Osage Nation led to a $380 million settlement during the Obama administration.

"Our history with Native Americans is not the prettiest history," Gorsuch told the Senate Committee on the Judiciary on Tuesday.

But the individual Osages aren't able to rely on Gorsuch's experience on the matter because he isn't handling any cases while his nomination to the high court is pending. A different panel of three judges -- Paul J. Kelly, Jr., David M. Ebel and Robert E. Bacharach -- heard the appeal in Denver on Wednesday morning.

Chief James Floyd of the Muscogee Nation with young tribal citizens. Photo: MCN

At the same time, another panel of the 10th Circuit Court of Appeals in Denver was taking up a second Indian law case. Citizen Potawatomi Nation v. State of Oklahoma touches on taxation and tribal-state relations, two areas in which Gorsuch has demonstrated expertise, according to a review of his Indian law record.

The Citizen Potawatomi Nation secured a big victory last year when a federal judge confirmed an arbitration award that prevents Oklahoma from imposing sales taxes on the reservation. The dollar amounts at issue are staggering -- an estimated $27 million could flow to the tribe's treasury,

"The Nation has numerous enterprises that support the tribal government and citizenry," the tribe wrote in a brief to the 10th Circuit as part of the case, which was heard by Judges Timothy M. Tymkovich, Mary Beck Briscoe and Michael R. Murphy. "The Nation imposes its own sales tax on sales of goods and services by tribal businesses on tribal lands to support governmental services and infrastructure for the Nation."

The third Indian law case heard by the 10th Circuit on Wednesday was Murphy v. Royal. It too is based on issues familiar to Gorsuch -- the rights of Indian criminal defendants and reservation boundaries.

The Byron White Courthouse in Denver, Colorado, is home to the 10th Circuit Court of Appeals. Photo: Gregory Bloom

Patrick Dwayne Murphy, a citizen of the Muscogee Nation, was sentenced to death for murdering George Jacobs, another Muscogee citizen. But when he contested the state's jurisdiction -- the crime occurred in 1999 on an Indian allotment -- he claims he wasn't fully heard on the matter.

"Oklahoma usurped the exclusive jurisdiction of the federal courts by prosecuting a case without jurisdiction to do so," Murphy's attorneys wrote in a brief to the 10th Circuit.

The Muscogee Nation, the Seminole Nation and the United Keetoowah Band of Cherokee Indians also submitted briefs in the case. While they are not taking a position on Murphy's guilt or innocence, they say the state and federal courts must accept that the Muscogee Reservation was never diminished by Congress even though portions were allotted to individual citizens.

"The Creek Nation has never been terminated," the Creek and Seminole brief stated in a case that was heard by Judges Tymkovich, Scott M. Matheson, Jr. and Gregory A. Phillips.

In Ute Tribe v. Utah, Gorsuch arrived at a similar conclusion when he said the reservation of the Ute Tribe in Utah has not been diminished. In his testimony to the Judiciary committee, he noted that the tribe has spent "a long time trying to control their tribal lands" against repeated attempts by the state to assert jurisdiction there.

All three cases are expected to be decided by the 10th Circuit in the coming months, by which time Republicans hope Gorsuch will be sitting on the Supreme Court. They are planning to bring his nomination up for a vote in early April and he could begin participating in cases as soon as he is confirmed.

But Democrats, frustrated by what they see as an unfair process, are setting up roadblocks. Sen. Chuck Schumer (D-New York), the Democratic leader in the Senate, said Gorsuch will have to overcome a filibuster, meaning he will need at least 60 votes to join the nation's highest court.

"Judge Gorsuch's nomination will face a cloture vote & as I’ve said, he will have to earn sixty votes for confirmation. My vote will be 'No,'" Schumer wrote on Twitter on Thursday.

The Supreme Court has been operating with just eight members following the death of Antonin Scalia in February 2016. Republicans refused to consider Merrick Garland, who was Barack Obama's nominee, and insisted on waiting until the outcome of the November election. Republican President Donald Trump ended up winning and he nominated Gorsuch on January 31.