Supreme Court takes up Indian law petitions amid major controversy

With the high-stakes nomination of Brett Kavanaugh in danger of being derailed due to sexual assault allegations, the U.S. Supreme Court is preparing for a term that's already proving to be a busy one for tribal interests.

The eight sitting justices met on Monday to consider petitions in several pending Indian law cases. They are expected to announce the results of their so-called "long conference" as soon as Tuesday, ahead of returning to work in less than a week.

Mindful of that schedule, President Donald Trump and Republicans in the Senate had hoped Kavanaugh would be joining the justices for the start of their term on October 1. But a vote on his nomination is in doubt due to one documented allegation of sexual assault that is to be taken up by the Senate Committee on the Judiciary this Thursday.

Sen. Chuck Grassley (R-Iowa), the chairman of the committee, said he will hear from Judge Kavanaugh, who currently serves on the D.C. Circuit Court of Appeals, and from Dr. Christine Blasey Ford, a California professor who has accused the nominee of assaulting her when both were teens in the early 1980s. In doing so, he also postponed an initial vote on the nomination amid outcries from key Democrats about the need to investigate the claim.

"The 11 Republican men on the committee are treating this like a hostage situation. They just don’t get it," Sen. Mazie Hirono (D-Hawaii), who is one of only four women -- all Democrats -- on the Judiciary panel, wrote in a post on Twitter before Grassley changed course.

But even as the committee continues to finalize the details of the critical hearing, a new allegation reported by The New Yorker on Sunday is threatening to upend the process again. Sen. Dianne Feinstein (D-California), the top Democrat on the panel, is calling for the proceeding to be canceled in order to investigate the claims.

"It is time to set politics aside," Feinstein wrote in a letter to the chairman. "We must ensure that a thorough and fair investigation is conducted before moving forward."

Welcome to the Citizen Potawatomi Nation. Photo: Jimmy Emerson, DVM

The Long Conference
With the Supreme Court opening its October term, the Tribal Supreme Court Project, a joint initiative of the Native American Rights Fund and the National Congress of American Indians, has been keeping an eye on petitions in significant Indian law cases. Six of those petitions, affecting everything from tribal homelands to treaty rights, were considered by the justices at their closed-door conference on Monday.

Most of the petitions are likely to be denied, simply because the court does not grant the overwhelming majority of petitions presented to the justices. But with three Indian law cases from the lower 48 and one Native-related case in Alaska already on the docket, tribes are paying close attention.

The petitions that were considered during the “long conference” on Monday follow:

Citizen Potawatomi Nation v. Oklahoma, an arbitration dispute between the Citizen Potawatomi Nation and the state of Oklahoma. The tribe lost at the 10th Circuit Court of Appeals so a grant of the petition would help its cause, which stems from efforts by the state to impose taxes on the reservation.

County of Amador v. Department of the Interior, a tribal homelands case affecting the Ione Band of Miwok Indians. The federal government prevailed at the 9th Circuit Court of Appeals and the case was so strong that the Trump administration initially declined to respond when Amador County filed the petition. A grant would mark a setback for the tribe and its efforts to re-establish its homelands in northern California.

Fort Peck Housing Authority v. Department of Housing and Urban Development, an administrative case affecting dozens of tribes and their housing programs. The federal government prevailed at the 10th Circuit Court of Appeals, which was a setback for tribes who have been trying to recover funds that were “illegally” taken by the Department of Housing and Urban Development. A grant of the petition would help Indian Country’s efforts in this area.

Lummi Tribe of the Lummi Reservation v. United States, another administrative dispute involving tribal housing. The Federal Circuit Court of Appeals ruled against the tribes so a grant would represent a boost to the tribes in their claims against the Department of Housing and Urban Development.

Makah Indian Tribe v. Quileute Indian Tribe, a treaty rights dispute in Washington state. The Makah Nation contested the “usual and accustomed” fishing areas of other treaty tribes but the 9th Circuit Court of Appeals did not buy the argument. The Supreme Court was unable to resolve another treaty dispute from Washington earlier this year so a grant of this petition would be remarkable.

Poarch Band of Creek Indians v. Wilkes, a sovereign immunity case affecting the Poarch Band of Creek Indians. The tribe lost at the Supreme Court of Alabama, which allowed a negligence lawsuit to go forward on the grounds that the tribe did not enjoy immunity. So a grant would benefit the tribe’s cause on an issue that has been of repeated importance at the nation’s highest court.

Additionally, a seventh Indian law petition had been placed on the schedule for the September 24 conference. But that was before the Supreme Court granted more time for the Trump administration to respond to Stand Up for California! v. U.S. Department of the Interior.

The new schedule means the petition will likely be considered at a future conference. At issue are the homelands of the North Fork Rancheria of Mono Indians in northern California. The D.C. Circuit Court of Appeals sided with the tribe and the federal government so a grant here would represent a setback.

The U.S. Supreme Court at night. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The October 2018 Term
Amid the high-stakes nomination, Indian Country is preparing for a busy season at the Supreme Court.

Three Indian law cases from the lower 48 states, affecting treaties, taxation and reservation boundaries, are already on the docket, meaning the Supreme Court has granted those petitions. And a fourth grant, in a case known as Sturgeon v. Frost, impacts Native subsistence rights in Alaska.

The heavy workload has tribes in Alaska extremely worried about the prospect of Judge Kavanaugh hearing these and other cases. The Alaska Federation of Natives, the largest organization of its kind in the state, and the Central Council of Tlingit and Haida Tribes, which represents over 30,000 citizens, have already come out against the nomination.

Governor Bill Walker (I) and Lieutenant Governor Byron Mallott (D), who are running for re-election, joined the cause last week. In a statement, they said Kavanaugh's views threaten tribal rights.

"Mr. Kavanaugh’s appointment could also jeopardize the Indian Child Welfare Act, Alaska Native Claims Settlement Act, and other laws that enable tribal self-determination due to his overly narrow view of the relationship between federal and tribal governments," Walker and Mallot wrote in a September 20 statement. "Alaska is home to 229 tribes, nearly half of all tribes in our nation."

The pair also voiced concerns about the need to protect women, an issue of importance to tribes in the state, but also to Sen. Lisa Murkowski (R-Alaska), a long-serving member of the Senate Committee on Indian Affairs and whose stance on Kavanaugh will be crucial to his success in the coming days.

"Violence against women in Alaska is an epidemic," the statement read. "We do not condone placing someone into one of our nation’s highest positions of power while so many key questions remain unanswered."

Of the four cases on the docket, the Supreme Court has scheduled arguments for two. Washington State Department of Licensing v. Cougar Den, a treaty and taxation case affecting the Yakama Nation, will be heard on October 30. Sturgeon, the Alaska subsistence case, will be heard a week later, on November 5.

The Supreme Court has yet to schedule arguments in Herrera v. Wyoming, another treaty rights case, this one involving the Crow Tribe. A date for a hearing in Royal v. Murphy, a high-profile reservation boundary dispute, is also pending.

Brett Kavanaugh
As the new allegation surfaced, Judge Kavanaugh and his wife appeared on Fox News on Monday evening. Kavanaugh denied the sexual assault allegations and said he would not step down from the process.

"What I know is the truth, and the truth is I've never sexually assaulted anyone," Kavanaugh said in the exclusive interview.

"I'm not going anywhere," he added.

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