Supreme Court delivers bad news to tribes as term draws to a close

Monday, June 25, 2018  

The U.S. Supreme Court won't be letting Indian Country rest over the summer even as an unusually busy term comes to a close in the nation's capital.

The justices on Monday took action in four pending Indian law cases and the news wasn't always good for tribal interests. And there's still more to come this week, with two other disputes, both of which have been on the docket for months, awaiting movement.

Treaty rights

In the most significant development, the Supreme Court agreed to hear a closely-watched treaty rights case from Washington state. The petition in Washington State Department of Licensing v. Cougar Den was granted in an order list in the morning.

At issue is whether citizens of the Yakama Nation must pay a fuel tax to the state. The Washington Supreme Court ruled that the tax violated the 1855 Yakama Treaty, which specifically guarantees "free access" to public highways.

But that victory is now in doubt thanks to an appeal by Bob Ferguson, the state's Democratic attorney general. He's already faced fire in tribal circles for taking another treaty rights case to the Supreme Court, one whose outcome didn't go his way.

"He's abusing the office," Gabe Galanda, a prominent Indian law attorney, wrote in a post on Twitter on Monday.

But the Republican Trump administration also has played a key role in the matter. After waiting more than seven months to submit a brief in the case, the Department of Justice argued that the tax does not violate the treaty and urged the Supreme Court to grant the petition.

So now the Cougar Den, a fuel company based on the reservation, has even more opponents to contend with over the summer, when briefs will be filed with the court. Arguments are expected after the justices start their next term in October.

"This could ruin my aunt’s business and leave my family out there homeless," a relative wrote in a post on Twitter.

One day we’ll realize we cannot eat money. This could ruin my aunt’s business and leave my family out there homeless, keep them in your thoughts please and call your local senator please. https://t.co/RmfjODVZ7i

— Alec (@eelich_) June 25, 2018

Reservation boundaries

The Trump administration played an even more pivotal role in another Indian law case that saw action on Monday. And again, the news was bad for tribal interests.

Without comment, the Supreme Court rejected separate petitions filed by the the Eastern Shoshone Tribe and the Northern Arapaho Tribe. That means the end of the road for their long-running efforts to defend the boundaries of the Wind River Reservation in Wyoming.

During the Obama years, the tribes had the backing of the Environmental Protection Agency, which determined that the reservation remained intact. But the landscape shifted significantly after the 10th Circuit Court of Appeals in February 2017 held that a portion that includes the border community of Riverton is no longer Indian Country because it was opened to allotment by Congress in 1906.

But rather than help the tribes fight the 10th Circuit ruling, the Trump administration abandoned them. Then, in another insult, government attorneys told the Supreme Court deny their petitions in Eastern Shoshone Tribe v. Wyoming and Northern Arapaho Tribe v. Wyoming

"This is far from the first time the tribe has faced challenges imposed by the U.S. government," the Eastern Shoshone Business Council said in a statement on Monday. "Indeed, much of the history between the tribes and the United States has been one of the U.S. making promises to the tribe, only to break them later."

The tribes didn't just lose the United States, their trustee, as they pleaded with the Supreme Court. They also could not rely on the expertise of Justice Neil Gorsuch.

As a judge on the 10th Circuit, Gorsuch was credited by leaders of the Ute Tribe for siding with them in their long-running reservation boundary dispute in Utah. But he did not take part in the consideration of the Wind River petitions, according to Monday's order list, presumably because of his past service on the appeals court.

The Supreme Court typically does not publicize which justices would have granted a particular petition. But with Gorsuch out of the picture, the tribes likely had fewer than the four votes needed for the cause.

"It is enormously disappointing that the Court apparently did not see the monumental importance, and the injustice, of the Tenth Circuit's decision, which reduces the sovereign territory of the Eastern Shoshone based on a deeply flawed analysis," the business council said. The tribe "will continue to fight," the statement read.

Trouble for the Utes?

The Trump administration will be making its mark in yet another Indian law case and already there are some parallels to Cougar Den.

The petition in Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation arises from a state court decision that went in favor of tribal interests. If the addition of Cougar Den to the docket is any indication, warning bells are already going off in the nation's capital.

And just like with Cougar Den, the Supreme Court wants to know what the Trump administration thinks. An order issued on Monday marked the emergence of another CVSG, or a call for the views of the Solicitor General, as the influential Turtle Talk blog once explained.

That development marks the fourth time since October that the Solicitor General at the Department of Justice will be weighing in on a major Indian law case where the federal government was not a party in the dispute. The number actually rises to five when Royal v. Murphy, a reservation boundary dispute that also has been added to the docket, is taken into account. In that instance, government attorneys rushed to file a brief, even though they weren't asked to do so.

And if that wasn't enough for your Monday morning, some potential bad news awaits the Ute Tribe. The Supreme Court has asked the Trump administration for a brief in a tribal court jurisdiction case. These so-called CVSG briefs haven't turned out so well for Indian Country. #Utah pic.twitter.com/A2fwxP0Qj9

— indianz.com (@indianz) June 25, 2018

At issue in Harvey is a November 2017 decision from the Utah Supreme Court which held that non-Indians must exhaust their remedies in the judicial system of the Ute Tribe before going to state court. The so-called tribal court exhaustion doctrine is a well-established precedent in the federal system.

But Ryan Harvey, a non-Indian who has repeatedly clashed with tribal officials over his energy service businesses, contends his situation is different. He is asking the Supreme Court to declare that the tribal exhaustion doctrine should not be applied in state actions, where he has accused the tribe of extortion.

"The oil and gas industry serves as the bedrock of the Uintah Basin economy," Harvey wrote in his petition in March. "The industry relies heavily on access to the Uintah and Ouray Reservation of the Ute Indian Tribe. This gives the tribe immense leverage over the industry itself and the local businesses that support it."

The tribe naturally is opposing the petition. A response filed last month points out that Harvey never actually pursued his remedies in the Ute court system because he believes they are biased against non-Indians.

"The Utah District Court rejected this argument, finding that petitioners provided no evidence to support an allegation of bias," the May 21 response read.

After Harvey filed his final reply on June 5, the Supreme Court scheduled his petition for consideration at a closed-door conference on June 21, according to Docket No. 17-1301. But until the Trump administration submits the brief, his case will sit in limbo.

Something supremely better

Not everything from the Supreme Court on Monday was bad for Indian Country as the Shingle Springs Band of Miwok Indians emerged victorious in a long-running gaming dispute in California.

The tribe's contracts with Sharp Image Gaming, a former partner, were never approved by federal regulators. That means they cannot be enforced, a state appeals court ruled last September.

The decision was a big win for the tribe because it reversed a $30 million judgement that Sharp Image had obtained for alleged breach of contract. The firm asked the Supreme Court to review the case but the justices declined without comment in the order list.

Still more pending matters

The Supreme Court is about finished with its October 2017 term, one which has been exceptionally busy for tribal interests.

Of the three Indian law cases decided since last fall two were complete victories, even if one came about by unusual means. And while the third matter wasn't completely resolved, the high court helped advance the ball by addressing a lingering sovereignty issue.

Despite the action, the justices have yet to resolve two petitions that have been pending just as long as others that have already been disposed. One is Herrera v. Wyoming, a closely-watched treaty rights dispute involving a citizen of the Crow Tribe who was prosecuted for hunting in Wyoming.

The state's highest court ruled that the tribe's hunting rights did not survive Wyoming's admission to the Union. But in contrast to the situation in Cougar Den, the Trump administration is backing Clayvin Herrera, the Crow citizen who killed an elk in the Bighorn Mountains more than three years ago.

The Trump administration has come through for a citizen of the Crow Tribe in a treaty rights dispute. Surprising as that may be, what happens next is in the hands of the Supreme Court. https://t.co/iPKh1N9QHp

— indianz.com (@indianz) May 24, 2018

The petition was scheduled for consideration at a closed-door conference on Thursday, according to Docket No. 17-532. But it was mysteriously absent from Monday's order list, leading to speculation that the justices might grant it.

"There will be a 'clean up' conference at which they will consider the petitions that were relisted because they are strong prospects for cert," attorney Kevin Russell of the Goldstein & Russell law firm wrote on the influential SCOTUSBlog on Monday in response to a question about outstanding petitions.

In contrast, observers feel the second outstanding petition has little chance of being granted. At issue in Bearcomesout v. United States is whether a citizen of the Northern Cheyenne Tribe can be prosecuted by her government and by the United States for killing her common-law husband, whom she accused of beating her.

Recent precedent suggests that Tawnya Bearcomesout, who has already been punished for the crime, can in fact be tried by both sovereigns without violating her constitutional rights. Despite the seemingly settled nature of the case, the Supreme Court has failed to resolve her petition, which dates to November of last year.

Bearcomesout in fact been "distributed for conference" for 11 times since January, according to Docket No. 17-6856, a record in an Indian law case. The tally went up to 12 when the Supreme Court failed to take action on Monday.

So what's the holdup, if the petition will end up being rejected? Watchers of the court believe one member -- probably Justice Clarence Thomas -- has been spending the past six months crafting a dissent to the denial in order to explain why his views on Indian law and Indian policy, despite falling outside of the mainstream, should prevail.

Indian Country should find out soon enough, perhaps before the end of the week. Though the docket sheets for Herrera and Bearcomesout have yet to be updated with a new conference date as of early Monday afternoon, the Supreme Court is expected to resolve them before they go on break. The justices still have opinions in four pending cases to announce this week, according to SCOTUSBlog.

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