Indian Country awaits outcome of final cases on Supreme Court docket

Monday, April 15, 2019  

WASHINGTON, D.C. -- The U.S. Supreme Court has yet to add another Indian law case to its workload but tribes and their advocates are still paying close attention to the happenings in the nation's capital.

Decisions are pending in two cases on the docket. But experts are predicting a long wait for a ruling in Carpenter v. Murphy, whose outcome will determine whether the reservation of the Muscogee (Creek) Nation continues to exist.

A hearing took place last November, with the state of Oklahoma and the Trump administration arguing that the reservation was diminished by Congress. But the court wasn't satisfied with the proceeding and, a week later, took the extraordinary step of ordering additional briefs from all of the parties in the case.

"That really signals, at least at that stage, that the court was struggling to get their majority view on this case," Joel Williams, a citizen of the Cherokee Nation and staff attorney at the Native American Rights Fund, told leaders of the United South and Eastern Tribes during their recent meeting in Washington, D.C.

With the new briefs submitted at the end of last year, Williams said the justices might be able to come up with an answer. But he noted that the case is only being handled by eight of the nine members of the highest court in the land.

That's because Justice Neil Gorsuch has recused himself. He previously served on the 10th Circuit Court of Appeals, where the dispute originated after a Creek citizen successfully challenged the state's ability to prosecute him for a crime that occurred on an Indian allotment within his tribe's territory.

Gorsuch didn't participate in the lower court's decision in the case, which was heard while his nomination was being considered in D.C.. But he may have come into contact with it during his prior role on on the 10th Circuit, forcing him to step away from the matter.

His absence means that the justice with one of the most favorable Indian law records in history won't be able to lend his expertise to his colleagues -- at least those who appear to be on the fence about the status of the tribe's reservation.

"It really to me signals that this was heard by a four-member court," Williams said, referring to the fact that the views of four justices will determine how the case turns out.

The recusal is even more striking in light of another Indian law case that was just decided by the Supreme Court. Gorsuch's strong views about tribal treaties contributed to a narrow 5-4 victory in Washington State Department of Licensing v. Cougar Den.

"I think we are starting to see a turn," Mary Kathryn Nagle, an attorney and Cherokee Nation citizen, said last month of Gorsuch's concurring opinion in a case that upheld the treaty rights of the Yakama Nation.

According to Nagle, who has worked on Supreme Court cases affecting protections for Native women, Gorsuch's presence indicates a bloc of at least four justices who are willing to take a critical look at precedents that have gone against Indian Country's interests. Tribal jurisdiction over non-Indians is one of those areas, she said.

"There's some glimmering hope," Nagle said at the Safety for Our Sisters symposium, held at the National Museum of the American Indian on March 21.

A full slate of justices is participating in the other Indian law case that's pending before the court. Oral arguments in Herrera v. Wyoming took place on January 8, with Gorsuch suggesting that it is time to address Ward v. Race Horse, a prior decision that limited off-reservation treaty rights.

"What do you say to the suggestion that we just be done with Race Horse and overrule it?" Gorsuch asked at the hearing.

"The government would be fine with that. We would invite the court to overrule Race Horse," responded Frederick Liu, an assistant to the Solicitor General at the Department of Justice.

The outcome in Herrera will determine whether citizens of the Crow Tribe can be prosecuted for hunting on off-reservation treaty territory in the state of Wyoming. Like Carpenter, a decision is expected before the conclusion of the Supreme Court's October 2018 term. The session typically wraps up by the end of June.

"When faced with the decision to join this case, an easy way out would have been to defer to other entities," Chief James Floyd said during his State of the Nation address earlier this year. "But that would have weakened our sovereignty."

Without comment, the Supreme Court on Monday refused to hear an appeal filed by the Saint Regis Mohawk Tribe. At issue is whether the tribe is entitled to sovereign immunity in connection with drug patents it owns.

Last July, the Federal Circuit Court of Appeals ruled that the tribe cannot assert immunity in proceedings before the U.S. Patent Trial and Appeal Board. That decision stands as a result of the Supreme Court's action, which came in an order list.

But the legal wrangling over a popular drug that treats dry eye conditions is not yet finished. The tribe is part of a second petition that was presented to the court just last week, so it will be a few more months before that one is resolved.

The sovereignty immunity case is Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, Inc. The second patent case is Allergan, Inc. v. Teva Pharmaceuticals USA, Inc..

Sovereign immunity is also at issue in an appeal filed by the Poarch Band of Creek Indians. But it could be a few more months before the tribe hears whether the case will be accepted by the Supreme Court.

At issue in Poarch Band of Creek Indians v. Wilkes is whether an employee of the tribe's gaming enterprise can be held liable for an accident that occurred in Alabama. The state's highest court ruled that the tribe could not assert its immunity in the matter.

But even after the Supreme Court accepted all of the briefs, it wasn't enough for the justices. So they asked the Department of Justice for the Trump administration's views.

Lori Madison Stinson, the tribe's attorney general, has since met with government officials to discuss the case. But she told leaders of the United South and Eastern Tribes that DOJ's brief probably won't be submitted until the end of May.

“For the Poarch Band," she said in reference to the Alabama court's decision, the sky did fall.”

The Tribal Supreme Court Project, a joint initiative of the Native American Rights Fund and the National Congress of American Indians, is monitoring petitions in more than a dozen cases. Most are likely to be rejected but definitive answers won't be known for a while because almost all of the appeals are in their early stages.

A possible exception is McNeal v. Navajo Nation, a tribal immunity case from New Mexico. The 10th Circuit Court of Appeals last July ruled that the Navajo Nation did not waive its sovereignty in connection with certain kinds of incidents at their casinos.

All of the briefs have been filed and the petition is due to be considered at a closed-door conference on Thursday, according to Docket No. 18-894. That means the justices should have an answer soon on whether they will accept the case -- unless they ask the Trump administration for its views in the case.

Another petition that is close to being resolved is Casino Pauma v. National Labor Relations Board. At issue is whether the Pauma Band of Luiseño Indians must comply with federal labor law.

In April 2018, the 9th Circuit Court of Appeals ruled that employees of Casino Pauma in southern California are protected by the National Labor Relations Act. The tribe is seeking to overturn the decision but the National Labor Relation Board, in a brief filed last Wednesday, says the law has been settled.

According to the Department of Justice's submission, appellate courts across the nation have "upheld the board’s exercise of jurisdiction over large-scale commercial gaming enterprises operated by Indian tribes."

The Pauma Band will be able to file a reply before the petition is considered by the court for further action. Congress, meanwhile, has refused to consider Indian Country's long-standing request to clarify that their governments -- like state and local ones -- should be exempt from federal labor law.

Of the additional petitions being monitored by the Tribal Supreme Court, the most striking is perhaps Teck Metals LTD v. The Confederated Tribes of the Colville Reservation.

At issue are long-running efforts of the Colville Tribes to protect their homelands in Washington state from mining waste. Last September, the 9th Circuit Court of Appeals ruled that a Canadian company that has dumped millions of tons of dangerous chemicals into Columbia River for more than a century can be held liable under U.S. environmental protection law.

Not surprisingly, Teck, the owner of the mining operation in question, is asking the Supreme Court to overturn the decision. But so is the province of British Columbia, where the world’s largest lead and zinc smelter is located, as well as the Canadian government, despite promises by Prime Minister Justin Trudeau to set a new era in relations with indigenous peoples.

The April 5 brief in fact mentions that goal. "It should be noted that Canada is engaged in a comprehensive and ongoing reconciliation process with Indigenous peoples in Canada," it reads.

Trudeau's administration, however, has been marred by its treatment of the first Native woman who served as the Minister of Justice. Jody Wilson-Raybould, a citizen of the We Wai Kai Nation, resigned in February in protest of the prime minister's handling of a legal issue unrelated to the Teck case.

According to Canada's private law firm, though, the case is not about Indigenous rights at all. Instead, the brief urges a diplomatic resolution to the concerns of the Colville peoples, some of whose citizens retain aboriginal, modern and legal connections to their homelands in Canada.

"The Ninth Circuit’s holding threatens to undermine the diplomatic processes that have, for more than a century, proven to be the most effective method of dealing with environmental contamination that crosses the U.S.-Canada border," the brief states.

The Colville Tribes have until May 6 to file a response to the petition submitted by Teck Metals Ltd, according to Docket No. 18-1160. The state of Washington also has been a part of the case, siding with the tribe.

The U.S. government at this point has not been involved in the litigation, which included a prior appeal to the Supreme Court that was rejected in 2008. The government of Canada, then under the rule of Stephen Harper, whose record on Indigenous issues was shaky, had submitted a brief at that time, also urging a diplomatic, rather than legal, resolution.

Other Indian law petitions pending before the Supreme Court include:

• Bearcomesout v. United States (17-6856) -- Dual tribal and federal prosecution of a tribal citizen for a crime in Indian Country.

• Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe of Chippewa Indians (18-1218) - Tribal sovereign immunity in bankruptcy proceedings.

• Comanche Nation of Oklahoma v. Zinke (18-1261) - An inter-tribal gaming dispute in Oklahoma.

• Havasupai Tribe v. Provencio, et al. (18-1239) - A dispute over tribal consultation.

• King Mountain Tobacco Company, Inc. v. United States (18-984) - A tobacco taxation dispute on the Yakama Nation.

• Miccosukee Tribe of Indians v. United States (18-895) - A dispute over federal taxation of tribal per capita proceeds

• Mitchell, et al. v. Tulalip Tribes of Washington (18-970) - A dispute over jurisdiction regarding non-Indian fee land within a reservation.

• Oglala Sioux Tribe, et al. v. Fleming (18-1245) - An Indian Child Welfare Act dispute from South Dakota.

• Sally Jim v. United States (18-891) - Federal taxation of tribal per capita proceeds.

• Wilson v. Horton’s Towing, et al. (18-1081) - Seizure of vehicles by tribal police in Washington.

Jam out with the justices! Listen to lawyers! No, really, these are important U.S. Supreme Court cases.

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