Alaska Natives take part in a bill signing ceremony in Juneau , Alaska, on September 23, 2018. The Central Council of Tlingit and Haida Tribes; the Alaska Federation of Natives, the Bering Sea Elders Group, Alaska Gov. Bill Walker (I) and Alaska Lt. Gov. Byron Mallott (D), who is Tlingit, are opposing Brett Kavanaugh's nomination to the U.S. Supreme Court. Photo: Alaska Governor Bill Walker

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Supreme Court opens new term with major Indian law cases on docket

Monday, October 1, 2018

The U.S. Supreme Court is back in session as Indian Country and the nation await the fate of controversial nominee Brett Kavanaugh.

Republicans in the Senate had hoped to confirm Kavanaugh before the start of the high court's new term on Monday. But even after they pushed through his nomination at a committee meeting on Friday, they relented on a final vote in order for the FBI to conduct a "limited" investigation into sexual misconduct claims against the nominee.

"The supplemental FBI background investigation would be limited to current credible allegations against the nominee and must be completed no later than one week from today." the Republicans on the Senate Committee on the Judiciary said in a statement late Friday, after the panel split along party lines in the afternoon to advance Kavanaugh to the full Senate.

The mere existence of the allegations, one of which was aired at a closely-watched and heated hearing just the day prior, is enough to disqualify Kavanaugh, the largest tribal nation in Alaska said on Friday. The Tlingit and Haida Tribes were the first in the state and the first tribal government to come out against the nominee.

"It is unfathomable to us that a man accused of violent acts against women could be considered for a role as important as Supreme Court Justice," the tribe said in a statement as it called on Sen. Lisa Murkowski (R-Alaska), who has been an advocate for Native women's issues, and Sen. Dan Sullivan (R-Alaska), whose wife and children are Native, to vote against Kavanaugh.

"It is unfathomable to us that a man accused of violent acts against women could be considered for a role as important as Supreme Court Justice."

Tlingit and Haida Tribes redouble opposition to Supreme Court nominee Brett Kavanaugh#StopKavanaugh pic.twitter.com/eVljrLymko
— indianz.com (@indianz) September 28, 2018

The final Senate vote is expected later this week, after the FBI completes its additional work. But the drama isn't stopping the Supreme Court from moving forward with the October 2018 term.

The court already has four Indian and Alaska Native cases on the docket. Washington State Department of Licensing v. Cougar Den, a treaty and taxation case affecting the Yakama Nation, will be heard on October 30. The court will take up Sturgeon, a case that impacts Native subsistence rights in Alaska, 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.

But for now, no new additional Indian Country cases are being added to the docket. With eight members at work, the court on Monday declined to hear four cases and put off action on another. Additionally, a sixth case also has been delayed.

"CERTIORARI DENIED"

County of Amador v. Department of the Interior is 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. The denial of the case marks a victory 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 is 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. The denial of the petition represents a setback for Indian Country’s efforts in this area.

Lummi Tribe of the Lummi Reservation v. United States is another Indian housing dispute. The Federal Circuit Court of Appeals ruled against three tribes in their efforts to recover about $3 million in federal funds. The denial means their claims have come to an end.

Makah Indian Tribe v. Quileute Indian Tribe is a treaty rights case from 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 it looks like they aren't interested in delving even deeper into the issue.

All four of these cases were denied in an order list on Monday. No explanations were given, except for a note on the Fort Peck Housing Authority petition.

According to the order list, Justice Neil Gorsuch, whose nomination was eagerly supported by Indian Country last year, "took no part in the consideration or decision of this petition." He previously served on the 10th Circuit Court of Appeals, where the tribes lost, and though he did not participate in the decision, it is common for judges to recuse themselves in situations where they might have come into contact with the case during a prior stage of litigation.

Just started, tonight, our 7th FBI investigation of Judge Brett Kavanaugh. He will someday be recognized as a truly great Justice of The United States Supreme Court!
— Donald J. Trump (@realDonaldTrump) September 29, 2018

Some delays

Poarch Band of Creek Indians v. Wilkes is a sovereign immunity case affecting the Poarch Band of Creek Indians. This is the petition that has been put off, with the Supreme Court on Monday asking the Trump administration for its views in the matter.

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 sovereign immunity. The tribe will now have to wait to see how the Department of Justice responds.

Though the justices aren't ready to take action at this point, they are very familiar with the immunity issue. In 2017, they handed defeated to Indian Country with the decision in Lewis v. Clarke, which opened tribal employees to lawsuits. In a 2014 case, known as Michigan v. Bay Mills Indian Community. , the court ruled that the Bay Mills Indian Community couldn't be sued by the state of Michigan.

Prior to the issuance of Monday's order list, the Supreme Court delayed action in a sixth Indian law petition. This one also has a connection to the 10th Circuit, where Justice Gorsuch previously served.

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

The petition was originally due to be considered at the so-called "long conference" on September 24, the same day as the five other Indian law petitions being followed by the Tribal Supreme Court Project, a joint initiative of the Native American Rights Fund and the National Congress of American Indians. But the justices will instead take it up at a closed-door session on October 12, according to docket sheet for No. 17-1624.

Gorsuch did not take part in the 10th Circuit's decision -- arguments were heard while his nomination was already under consideration in the Senate last year -- but it's possible he has recused himself, as he has done with other cases from the same court. So the remaining seven justices may need more time to determine whether they want to hear the case.

According to the Supreme Court's rule of four, it only takes a vote of four justices to grant a particular petition.

Gorsuch has already stepped away from another 10th Circuit case that's on the docket. That's Carpenter v. Murphy, a closely-watched dispute whose outcome will determine whether the reservation of the Muscogee (Creek) Nation continues to exist.

Incidentally, the lower court's hearing took place on the same day as the Citizen Potawatomi case. The 10th Circuit ended up issuing a landmark ruling which concluded that Congress had not disestablished the reservation.

As a result, the court said the state of Oklahoma lacked jurisdiction to prosecute Patrick Dwayne Murphy, a Creek citizen who is on death row for murdering a fellow tribal citizen. The incident occurred in Indian Country so the federal government should prosecute, the court said.

At the request of the warden of the Oklahoma State Penitentiary, where Murphy has been held since his conviction, the Supreme Court has agreed to review the matter, raising alarms in Indian Country about a reversal. Six pro-tribal briefs were filed last week in what the Muscogee (Creek) Nation has called an "all-out assault" on its sovereignty.

"Where Congress expressly continued the Creek Nation’s existence and its governmental authority, the state would have this court infer the opposite," the tribe said in a joint motion last Wednesday. "And where Congress expressly provided that statehood would not compromise the rights of Indians in their lands, the state would again have this court disregard Congress’s words and deem the boundaries of the Creek Reservation 'evaporated.'"

With the motion, the tribe is seeking time to participate in the upcoming hearing the case. A ruling on the motion has not yet been made as of Monday afternoon, according to docket sheet for No. 17-1107.