The nine members of the U.S. Supreme Court. Front row, from left: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John G. Roberts, Jr., Associate Justice Clarence Thomas, Associate Justice Stephen G. Breyer. Back row: Associate Justice Elena Kagan, Associate Justice Samuel A. Alito, Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil M. Gorsuch. Photo: Franz Jantzen / Collection of the Supreme Court of the United States

Supreme Court opens term with new justice and with Indian law cases on horizon

Monday, October 2, 2017

The U.S. Supreme Court is back at work this week with a new member and a slew of Indian law cases on the horizon.

Although Neil Gorsuch was sworn into his post as an Associate Justice in April, the October 2017 term marks his first full one on the nation's highest court. In the coming months, his actions might show whether he was worthy of Indian Country's unprecedented endorsements.

So far, the court has just one Indian law case on the docket. Oral arguments in Patchak v. Zinke, a dispute that arose out of a tribal land-into-trust application in Michigan, take place on November 7.

But many more Indian law cases are on the horizon for the October term, which began on Monday. The Tribal Supreme Court Project, a joint initiative of the Native American Rights Fund and the National Congress of American Indians, has been watching more than a dozen petitions, affecting a wide range of issues, from treaty rights to water rights.

A 'no' on two cases

The justices disposed with two petitions as they opened their new term. In an order list issued on Monday, the court declined to hear Hackford v. Utah, a criminal case linked to the boundaries of the reservation of the Ute Tribe, and Williams v. Poarch Band of Creek Indians, an employee dispute affecting the Poarch Band of Creek Indians.

Hackford was potentially interesting because Gorsuch is very familiar with the underlying issue. When he served on the 10th Circuit Court of Appeals, he rebuked officials in Utah for refusing to accept the boundaries of the Uintah and Ouray Reservation and even took a lower court judge off the case after the Ute Tribe complained.

But as the order list noted, that experience did not come into play in Hackford. "Justice Gorsuch took no part in the consideration or decision" of the petition, the Supreme Court wrote, presumably because of his connection to the boundary matter.

The defendant in the case, Richard D. Hackford, was prosecuted by the state of Utah for a traffic stop in an area he claimed was part of the reservation. The state didn't bother to respond to his petition and the tribe was not involved in the case. Hackford is not enrolled in the tribe though he claims to be a Ute descendant.

Williams raised another hot-button issue of tribal sovereign immunity, which was the subject of a closely watched case just a few years ago. Christine J. Williams claims the tribe violated federal law by firing her and replacing her with a younger employee.

But the 11th Circuit Court of Appeals ruled that tribes are not considered "employers" under the Age Discrimination in Employment Act. And since the Poarch Band hasn't waived its immunity, the can't be sued without its consent.

Williams pursued the case without the aid of an attorney and the tribe waived its right to respond to her petition. The 11th Circuit ruling stands with the denial of her petition.

A 'maybe' in treaty rights case?

In its order list on Monday, the Supreme Court took action in Washington State Department of Licensing v. Cougar Den but not in a way that resolves a treaty rights dispute affecting a business on the Yakama Nation.

Rather than reject or accept the case, the court instead asked the Trump administration for its views. The Department of Justice will now be able to file a brief that examines whether the state of Washington can impose fuel taxes on a gas station on the reservation.

The Washington Supreme Court ruled in favor of the business, known as the Cougar Den. The 1855 Yakama Treaty guarantees "free and open access" to the commercial market and that means freedom from state taxation, the March decision stated.

In legal speak, the request for federal government's stance is known as a CVSG, or "Call for the Views of the Solicitor General," with the Solicitor General being the official at DOJ who handles litigation before the Supreme Court. The post is held by Noel Francisco, a Trump nominee who was confirmed last month.

A CVSG isn't always a sign that the justices are going to grant a particular petition or even if they are interested in the dispute. But in a paper and a post on the influential Turtle Talk blog, professor Matthew L.M. Fletcher observed a curious development -- whenever the Department of Justice expresses support for tribal interests in a CVSG brief, the tribal party's chances of success go down.

A rescheduling

The Supreme Court was poised to take action in Upstate Citizens for Equality v. U.S., a case affecting the Oneida Nation. The petition had been listed for consideration on September 25, meaning it could have been resolved when the justices opened their new term.

But four days before the so-called long conference, whose name comes from the long list of petitions awaiting action, Upstate Citizens was pulled for unknown reasons. It's now being "rescheduled" for a future date, according to Docket No 16-1320.

In May, the Supreme Court rejected a petition in a similar case affecting the Oneida Nation's land-into-trust application in New York so it's not clear why Upstate Citizens needs further review. The Trump administration opposes review of the case, noting that the tribe entered into a settlement with the state and local governments to address numerous issues on its ancestral homelands.

Big cases on the horizon

Although the Tribal Supreme Court Project can tick two cases off its watch-list, several more are still in the briefing stages. Three in particular raise significant issues, including the role of the federal government as trustee for tribes, and two of those are already drawing attention beyond Indian Country.

In a landmark decision in March, the Agua Caliente Band of Cahuilla Indians won the right to groundwater on its reservation in southern California. Two local water agencies are now asking the Supreme Court to overturn the ruling.

The tribe and the federal government have until the end of this week to respond to the petitions in Coachella Valley Water District v. Agua Caliente Band of Cahuilla Indians and Desert Water Agency v. Agua Caliente Band of Cahuilla Indians. But states and other groups have already submitted briefs -- all going against the tribe.

A second case is shaping up similarly. State governments and other groups are already filing briefs against tribal interests in Washington v. U.S., a treaty rights dispute in Washington state.

The 9th Circuit delivered tribes a huge victory in May when it held the state responsible for fixing culverts used by salmon to return to "usual and accustomed" fishing sites. The state contends it should not be forced to undertake what has been estimated to be a $2 billion project.

The treaty tribes and the federal government have been given until October 20 to respond to the petition. The anti-tribal briefs were filed, in a seemingly coordinated fashion, on September 20.

The third noteworthy case hasn't attracted interest, so far, beyond Massachusetts. But the outcome could have a significant impact throughout Indian Country.

In April, the 1st Circuit Court of Appeals said the Aquinnah Wampanoag Tribe could follow the Indian Gaming Regulatory Act. The historic ruling paved the way for a small Class II gaming facility on the reservation, located on the island of Martha's Vineyard.

The town of Aquinnah and the state of Massachusetts are now telling the Supreme Court that the ruling conflicts with similar cases involving tribes in other states, including Texas, where fresh disputes have re-emerged in the last couple of years. Framing the case as a conflict could persuade the justices to hear the matter.

Responses from the tribe and the federal government to the petitions in Massachusetts v. Wampanoag Tribe of Gay Head and Town of Aquinnah v. Wampanoag Tribe of Gay Head are due by November 13.