Horse riders at the Crow Fair, held annually on the Crow Reservation in Montana. This year's event -- the 100th annual -- takes place August 15-20, 2018. Photo: Jeremiah M. Murphy

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Indian Country awaits busy season at Supreme Court amid big change

Wednesday, August 15, 2018

As tribes prepare for another busy season at the U.S. Supreme Court, a key lawmaker is seeking to shed some light on a judicial nominee who could be ruling on their cases as soon as this fall.

Three significant Indian law cases are already on the docket for the court's upcoming term, which begins in October. If President Donald Trump and his Republican allies have their way, Brett Kavanaugh will be hearing and deciding those matters by that time.

But so far, tribes and their advocates haven't had a lot to say about Kavanaugh, largely because he doesn't have much of a record to go on. Despite serving on a key federal appeals court for a decade, he's written just one opinion and one supporting opinion in cases that have been considered significant in Indian Country.

And even though he worked at the White House for more than five years during a time in which Indian policy experienced major upheaval at the hands of another Republican president, the release of thousands and thousands (and thousands more) of pages of documents hasn't given much indication that Kavanaugh understands tribes and their issues.

So with confirmation hearings less than three weeks away, a top Democrat wants to know more. Sen. Tom Udall (D-New Mexico), the vice chairman of the Senate Committee on Indian Affairs, is seeking any records related to Kavanaugh's work on Native issues during the George W. Bush administration.

"Given that #SCOTUS’ influence is particularly acute in Indian Country, we need full access to ALL records pertaining to Kavanaugh’s work on Native American issues," Udall wrote in a post on Twitter on Wednesday as he called on the Senate Committee on the Judiciary to request the documents ahead of hearings slated to begin on September 4.

#SCOTUS decisions have a major effect on nearly all aspects of daily life in Indian Country. As the top Democrat on @IndianCommittee, I’m requesting @SenJudiciary obtain & turn over all records of Judge #Kavanaugh’s work on Native American issues. #WhatsAtStake pic.twitter.com/mXoJj1rDjv
— Tom Udall (@SenatorTomUdall) August 15, 2018

According to Sen. Chuck Grassley (R-Iowa), the chairman of the committee, lawmakers have already received a "record" number of documents from Kavanaugh’s tenure in federal government. He expects the confirmation hearings to last three to four days, meaning the Republican-controlled Senate could confirm the nominee in time for the October session.

“At this current pace, we have plenty of time to review the rest of emails and other records that we will receive from President Bush and the National Archives,“ Grassley said on Friday. “It’s time for the American people to hear directly from Judge Kavanaugh at his public hearing."

Another busy term

The influence of highest court in the land will indeed be felt in Indian Country in the coming months. The justices, who are down to eight following the departure of Anthony Kennedy on July 31, will be hearing and deciding one sovereignty case and two treaty cases.

The sovereignty case is Carpenter v. Murphy, formerly known as Royal v. Murphy. The outcome will determine whether the boundaries of the Muscogee (Creek) Nation remain intact after the tribe was forced -- by the federal government -- to relocate to Oklahoma.

In a landmark ruling, the 10th Circuit Court of Appeals held that the reservation had not been diminished by an act of Congress. The development means that tribal citizens who are accused of committing crimes -- like Patrick Dwayne Murphy, who has been charged with murdering a fellow Creek -- must be tried in the federal, rather than the state, system.

But instead of assert a trust responsibility and exercise authority, the Trump administration has done the exact opposite. Without being asked to participate, government attorneys pushed the Supreme Court to overturn the 10th Circuit victory. And now that the case has been added to the docket, they have already submitted a merits brief to reaffirm their position.

"Congress disestablished the historic territory of the Creek Nation when, in preparation for and granting Oklahoma statehood, it passed a series of statutes that broke up the Creek Nation’s lands, abolished its courts, circumscribed its governmental authority, applied federal and state law to Indians and non-Indians alike in its territory, provided for allotment of almost all of its communal lands to individual tribal members, distributed tribal funds to individual Indians, and set a time- table for dissolution of the tribe," the July 30 brief reads.

Tribal interests have yet to weigh in but state governments and industry interests have already flooded the Supreme Court with briefs, in hopes of convincing the justices to diminish the boundaries of the tribe's homelands. Oral arguments have not yet been scheduled.

NCAI Urges Senate to Consider Judge Kavanaugh's Views on Federal Indian Policy - click here to read NCAI's full statement: https://t.co/hMdelzgmZq pic.twitter.com/i3AAh47M8M
— NCAI (@NCAI1944) July 10, 2018

A second case on the docket is also attracting state and industry attention. The outcome of Washington State Department of Licensing v. Cougar Den will determine whether a business on the Yakama Nation, must pay fuel taxes to the state of Washington.

The state's highest court ruled that the Cougar Den did not have to pay the taxes. The ruling relied on the Treaty with the Yakamas of 1855, which guarantees tribal citizens "free access" to public highways in order for them to participate in economic activities.

But just like the Muscogee Nation case, the Trump administration has been of no help. Rather than defend the treaty provision at issue, which the tribe celebrated in June, government attorneys joined the state in asking the Supreme Court to overturn the Cougar Den's victory.

So far, the state and industry groups have submitted briefs. They argue that the Washington court wrongly interpreted the treaty.

"The taxes do not violate a treaty right because they 'are not a charge for Cougar Den’s use of public highways,' but relate to the fuel itself," the state's opening merits brief, filed August 9 reads. The Washington Oil Marketers Association and the Washington Association of Neighborhood Stores followed with their brief on Wednesday.

A tribal treaty is at the heart of the third case currently on the docket. But in contrast to the Muscogee Nation and Yakama Nation disputes, the Trump administration is taking a more pro-Indian approach in Herrera v. Wyoming.

At issue is whether citizens of the Crow Tribe are entitled to hunt on off-reservation lands promised to them in the 1868 Treaty of Fort Laramie. The courts in Wyoming have ruled that they cannot.

But Clayvin Herrera and government attorneys are arguing that the court got it wrong. Their argument resonates in Indian Country, where other tribal treaties have similar provisions related to off-reservation hunting, fishing, gathering and even water rights.

"Certainly a lot of tribes have off-reservation hunting and fishing rights,” attorney Joel Williams of the Native American Rights Fund said last October during the annual convention of the National Congress of American Indians, where the case was highlighted as one to watch.

The tribal record

Between 2006 and 2016, tribal interests lost nine out of 11 cases before the Supreme Court. The stunning record coincided with the arrival of Chief Justice John G. Roberts Jr., a nominee of former Republican president George W. Bush.

The outlook remained bleak for Indian Country, with eight more cases on the docket in the subsequent years. But the unexpected death of Antonin Scalia, who almost always went against tribal interests, in February 2016 led to some unusual developments.

Tribes ended up winning three of four cases immediately following his passing, with one victory even coming as the result of a 4-4 tie in a tribal jurisdiction dispute. The one loss wasn't a significant defeat, with the decision only clarifying the years in which a tribe could recover self-determination costs from the federal government.

The next four cases also posed trouble for Indian Country. But the arrival of Neil Gorsuch, a nominee of President Trump, brought some hope, as his record in Indian law was not just well known but favorable for tribal interests.

Tribes ended up winning three of those four cases, with Gorsuch sitting out the one decision that went against Indian Country because he had not been a part of the court at the time of oral arguments. And in a repeat of the 4-4 tie, the justices deadlocked on a key treaty case, resulting in a victory after Anthony Kennedy recused himself from the proceeding.

“Justice Kennedy was a key vote on many important issues for Indian Country and the country at large. It is critical that we all communicate with our Senators about the pending confirmation vote to ensure that tribal sovereignty and treaty rights are honored by the Supreme Court for decades to come.” National Congress of American Indians President Jefferson Keel said in July as he urged a closer look at Brett Kavanaugh's record.

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