Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Brett M. Kavanaugh in the Justices’ Conference Room, Supreme Court Building. Mrs. Ashley Kavanaugh holds the Bible. Photo: Fred Schilling, Collection of the Supreme Court of the United States

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Supreme Court gains new member as Trump's shadow looms large in Indian cases

Tuesday, October 9, 2018

Opposition in Indian Country and a sexual assault allegation weren't enough to derail the nomination of Brett Kavanaugh to the U.S. Supreme Court.

After a bitter battle that drew in an unprecedented level of engagement from Alaska Natives, the Senate on Saturday confirmed Kavanaugh to a vacant seat on the nation's highest court. All Republicans, except one, voted in his favor while all Democrats, except one, were opposed, marking the first time in more than a century that a Supreme Court pick skated by with the minimum level of support.

Despite the close call, President Donald Trump sounded victorious during a ceremonial swearing-in at the White House on Monday evening. In offering an apology to Kavanaugh and his family, he said the sexual misconduct allegations were "based on lies and deception" even though some Republicans found the testimony of Dr. Christine Blasey Ford, who accused the judge of sexual assault when both were teens in the early 1980s, to be credible.

"Our country, a man or woman must always be presumed innocent unless and until proven guilty," Trump said during the prime-time event.

"And with that, I must state that you, sir, under historic scrutiny, were proven innocent," Trump said to applause.

The White House on YouTube: The Swearing-In Ceremony of the Honorable Brett M. Kavanaugh

But with the confirmation battle over, Kavanaugh is now serving as the 102nd Associate Justice of the Supreme Court. He participated in his first round of oral arguments on Tuesday morning, hearing a group of criminal law cases in which the federal government is a party.

And though he did not participate in any of the Indian law motions or petitions that were the subject of an order list issued by the high court on Tuesday, Kavanaugh will soon be getting up to speed. Two of the upcoming cases in fact bear the mark of the Trump administration, whose involvement isn't looking good for tribal interests.

Oral arguments in Washington State Department of Licensing v. Cougar Den, a treaty and taxation case affecting the Yakama Nation, take place on October 30. In the order list, the court granted approval for the Trump administration to take part in the hearing.

At issue is whether the 1855 Yakama Treaty -- which specifically guarantees "free access" to public highways -- protects tribal citizens from a state gasoline tax. At the upcoming hearing, the Department of Justice will be arguing that the government-to-government agreement does not bar the imposition of the tax on the reservation.

"The United States has an interest in the proper interpretation of treaties between the federal government and Indian tribes, in light of both the United States’ own interests as a party to such treaties and its special relationship with the Indian signatories whose rights are secured under such treaties," Solicitor General Noel J. Francisco, a Trump appointee who handles Supreme Court litigation for the federal government, wrote in the motion that was granted on Tuesday.

Royalty of the Muscogee (Creek) Nation: Jr. Miss Louisa Harjo, left, and Miss Nina Fox. Photo: Muscogee (Creek) Nation

The Trump administration's views loom large in a second Indian law case as well. Although a hearing date for Carpenter v. Murphy, a high-profile reservation boundary dispute, hasn't been scheduled, the court also granted approval for the Department of Justice to participate.

The news isn't looking good for tribal interest either. The United States is arguing that the reservation of the Muscogee (Creek) Nation was "disestablished" by Congress and therefore is subject to the state of Oklahoma's jurisdiction.

According to Francisco's motion to participate in oral arguments, "Congress disestablished the historic territory of the Creek Nation when, in preparation for Oklahoma statehood, it passed a series of statutes that broke up the Creek Nation’s lands, abolished its courts, greatly circumscribed its governmental authority, applied 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."

Citing an "all-out assault" on its sovereignty, the Muscogee (Creek) Nation also has asked to participate in the upcoming hearing. The tribe's motion has not yet been resolved as of Tuesday morning but is due to be considered soon.

If the court agrees that the reservation has been diminished, Oklahoma can proceed with the execution of Patrick Dwayne Murphy, a Muscogee citizen who was convicted for the 1999 murder of a fellow citizen. Otherwise, the federal government would have to exercise its authority by pursuing the case, a practice that occurs elsewhere in Indian Country on a regular basis.

And while Kavanaugh has little experience in Indian law, despite having served on a key federal appeals court for a decade, his participation in the case will be significant. That's because Neil Gorsuch, whose nomination to the Supreme Court was eagerly supported by Indian Country last year, has consistently bowed out of all proceedings, including the motion that was resolved on Tuesday.

As a judge on the 10th Circuit Court of Appeals, Gorsuch ruled for Indian Country's interests in a majority of cases, including one about tribal boundaries. That happens the same court which ruled that the Creek Reservation continues to exist.

So with Carpenter down to just eight justices, a deadlock is possible. In that situation, the 10th Circuit's ruling would stand, marking a victory for tribal interests.

Kavanaugh could sway the outcome in the event the justices are at an impasse. But his views on Indian law are scarce -- during his time on the D.C. Circuit Court of Appeals, he wrote an opinion in just one significant Indian law case, which happened to arise from another tribal dispute in Oklahoma.

The Supreme Court hasn't offered a concrete explanation for Gorsuch's repeated recusals from the case, which was heard by the 10th Circuit after his nomination was already under consideration in the Senate. His absence means that the justice with one of the most favorable records in Indian law won't play a role in the determining the fate of the Creek Reservation in a dispute that is extremely fact-intensive and specific to the tribe's history.

"Justice Gorsuch took no part in the consideration or decision of this motion," was all the order list on Tuesday stated. Six Indian Country briefs, representing tribes across the nation, advocates for Native women and former federal prosecutors were filed late last month.

Clayvin Herrera, in white cap, is seen here with members of his family on the Crow Reservation in Montana. Photo: Kristy Bly / World Wildlife Fund

There is a third Indian law case in which the Trump administration also has played a major role. But unlike Cougar Den and Carpenter, this one is looking much better for Indian Country.

At issue in Herrera v. Wyoming is whether citizens of the Crow Tribe can exercise their treaty rights in areas away from their reservation in Montana. The Department of Justice has come down firmly in favor of Clayvin Herrera, who was prosecuted by the state of neighboring Wyoming for hunting a trophy elk, and the 1868 Treaty with the Crows, which includes a provision guaranteeing the right to hunt on "unoccupied lands of the United States."

"The historical record thus reinforces the conclusion that follows from a straight-forward reading of the treaty’s text: The right to hunt under the 1868 Treaty did not terminate upon Wyoming’s admission to the Union," Solicitor General Francisco wrote in a friend of the court brief.

Briefing continues in the case and it is likely that it will be heard during the court's January 2019 sitting, according to an October 3 letter from Herrera's attorney that requested more time to file a response. The Trump administration so far has not filed a motion to participate in the upcoming hearing.

The October 2018 Term

In addition to the three Indian law cases already on the docket for the October 2018 term, the Tribal Supreme Court Project, a joint initiative of the Native American Rights Fund and the National Congress of American Indians, is monitoring a slew of petitions. Justice Kavanaugh is expected to participate in the handling of all them:

• Bearcomesout v. United States (17-6856), a domestic violence case affecting a citizen of the Northern Cheyenne Tribe. Tawnya Bearcomesout argues that her constitutional rights were violated when she was prosecuted twice, by her tribe and by the United States, for the same crime. After delaying resolution of the petition for a record 11 times, the Supreme Court asked the Department of Justice for its views. Government attorneys responded on August 27, calling for even more delay while a similar case affecting prosecutions by separate sovereign governments. Bearcomesout is opposing further delay and there's been no movement on her case ever since her attorneys filed a reply on September 5.

• Citizen Potawatomi Nation v. Oklahoma (17-1624), 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. The petition is due to be considered at a closed-door session on October 12, according to docket sheet for No. 17-1624. Justice Gorsuch is likely to recuse himself from consideration because of his 10th Circuit connection -- the case had been heard on the same day as the Muscogee (Creek) Nation reservation dispute.

• Harvey, et al., v. Ute Indian Tribe of the Uintah and Ouray Reservation, et al. (17-1301), which arises from a Utah state court decision that went in favor of the Ute Tribe. But the petition sits in limbo because the Supreme Court asked the Trump administration for its views on June 25. A brief has yet to be filed.

• Osage Wind, LLC, et al. v. United States (17-1237) is another case in limbo, awaiting a brief from the Trump administration that was requested on May 14, almost five months ago. At issue is whether the Osage Nation should have been consulted and consented before a wind farm opened on tribal territory in northeastern Oklahoma. This is another 10th Circuit case, raising the possibility of yet another Gorsuch recusal.

• Poarch Band of Creek Indians, et al. v. Wilkes, et al. (17-1175), 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 sovereign immunity. This petition is on hold while the Supreme Court waits on the Trump administration for a brief, making it in the third of this group in limbo.

• Stand Up for California! v. U.S. Department of the Interior (18-61), a case affecting 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 petition is still in the early stages of briefing.

The Supreme Court rejects the overwhelming majority of petitions presented to the justices. They rejected four Indian law petitions on October 1 as they started their new term.

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

Sen. Lisa Murkowski (R-Alaska): Supreme Court Nomination

Brett Kavanaugh Confirmation

The Senate voted 50-48 on October 6, 2018, to confirm Brett Kavanaugh to be an Associate Justice of the Supreme Court.

Of the 50 "Yeas," 49 came from Republicans. The lone Democrat supporter was Sen. Joe Manchin of West Virginia, who also voted a day prior in favor of a procedural motion that advanced Kavanaugh's nomiation.

Sen. Lisa Murkowski of Alaska voted no on that procedural motion, the only Republican to do so. Though Kavanaugh, as an attorney in the White House during the George W. Bush administration and in private practice, has argued for a "race-based" view of indigenous Hawaiians, she she doesn't believe "he will be a threat to Alaska Natives."

"This is an issue that had certainly been raised. But I had extended conversations with the judge on just these issues,' Murkowski said on the Senate floor on Friday evening after the initial procedural vote. "And I believe that he recognizes, as he told me, that Alaska Natives are not in that identical place as Native Hawaiians."

But Murkowski said she couldn't support Kavanaugh because of his defiant and fiery testimony in which he denied the sexual assault and misconduct allegations. His September 27 appearance did not inspire confidence in the nation's highest court, she asserted.

"In Alaska .. the levels of sexual assault that we see within our Native American and our Alaska Native communities, the rates are incredibly devastating. It is not something that we say we’ll get to tomorrow," said Murkowski, who serves on the Senate Committee on Indian Affairs.

"We’ve heard those voices. We’ve heard those voices, and I hope that we have all learned something, that we owe it to the victims of sexual assault to do more and to do better and to do it now with them," she continued.

When the final confirmation vote came up the following day, Murkowski ended up registering "Present" to account for Sen. Steve Daines, another member of the Committee on Indian Affairs. The Republican from Montana would have voted "Yea" for Kavanaugh but was attending his daughter's wedding.

Murkowski's stance did not change the outcome of the confirmation vote but she paired up with Daines so that he wouldn't have to leave the ceremony, which took place in Montana on Saturday.

Of her decision, Murkowski said: "I do hope that it reminds us that we can take very small, very small steps to be gracious with one another and maybe those small, gracious steps can lead to more."

All of the other Republican members of the Committee on Indian Affairs who were on Capitol Hill voted for Kavanaugh. All of the Democrats on panel voted against him.

"I voted against the nomination because I believe Judge Kavanaugh did not prove himself worthy of elevation to the Supreme Court. I hope that, for the sake of our country, Judge Kavanaugh proves me wrong," said Sen. Tom Udall (D-New Mexico), the vice chairman of the committee.

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