This Land, a podcast hosted by Rebecca Nagle, debuts on June 3, 2019. Graphic: Crooked Media

Supreme Court enters final stretch with no new Indian law cases on docket

Tuesday, May 28, 2019

By Acee Agoyo

WASHINGTON, D.C. -- It looks like Indian Country can rest easy as the U.S. Supreme Court enters the final stretch of a surprising term with no new tribal cases on the horizon.

The nation's highest court had the opportunity to add some Indian law disputes to its workload on Tuesday but instead it denied them all in an order list issued in the morning. And petitions are pending in just a few more cases, a stark contrast to the last couple of seasons when tribes and their advocates worked overtime to address all of the challenges to their rights.

But Indian Country is still paying close attention to the happenings in Washington, D.C., especially after victories in two tribal treaty cases. A decision is pending in one final matter and it looks like it will be a wait down to the wire for Carpenter v. Murphy, whose outcome will determine

"If the 5 Justices who affirmed treaty rights in these two cases can stick together, the Supreme Court may finally be a place that upholds Native rights, rather than a place that tramples them," Rebecca Nagle, a citizen of the Cherokee Nation and a host of a new and rather timely podcast that focuses on Murphy and its implications , wrote in a post on social media on Tuesday.

Here's a wrap-up of the latest activity as the October 2018 term comes to a close.

🗣BIG ANNOUNCEMENT 🗣

I am thrilled to announce I am hosting a brand spankin' new podcast series about Native land, broken promises and the Supreme Court case that will determine the future of five tribes and half the land in Oklahoma! With @crookedmedia https://t.co/US1hmHitWR
— Rebecca Nagle (@rebeccanagle) May 23, 2019

Per caps

With its order list on Tuesday, the Supreme Court denied petitions in Jim v. United States and Miccosukee Tribe v. United States.

At issue is whether Sally Jim, a citizen of the Miccosukee Tribe, must pay taxes on her shares of gaming revenue. The 11th Circuit Court of Appeals last June ruled that she is required to do so because Congress hasn't provided an exemption.

"Congress spoke clearly when it imposed federal income taxation on per capita payments derived from gaming revenue," Judge Gerald Tjoflat wrote in the 21-page decision.

The decision stands as a result of the denial of the petitions in Jim and Miccosukee Tribe. So unless Congress dictates otherwise, tribal per capita payments remain subject to federal taxation.

According to the 11th Circuit, Jim owes $267,237.18 for failing to file a tax return in 2011. Other Miccosukees are on the hook for paying the same federal taxes.

The Miccosukee Indian Village in Florida. Photo: El Gringo

Indian Child Welfare Act

Non-Indians and conservative groups are still trying to undermine the Indian Child Welfare Act but they won't get to do it with one particular lawsuit after the Supreme Court denied a petition in Carter v. Sweeney on Tuesday.

The closely-watched case challenged the applicability of the Indian Child Welfare Act to pending adoption proceedings in Arizona. But since the adoptions went through and have become final, the 9th Circuit Court of Appeals dismissed the lawsuit as moot in a memorandum last August.

"The named plaintiffs are no longer subject to ICWA, and they do not allege that they will be in the imminent future," the decision stated.

The plaintiffs, who adopted children from the Gila River Indian Community and the Navajo Nation, sought to revive their case by claiming future adoptions would be harmed by ICWA. Though the Supreme Court did not explain why it denied their petition, the dismissal of their lawsuit stands as a result of the order.

Indian gaming

The Supreme Court rarely takes on Indian gaming cases and Comanche Nation v. Zinke is no exception to this general rule. The Trump administration, in fact, didn't even bother responding to the petition, which was denied on Tuesday.

In the dispute, the Comanche Nation sued the federal government for approving a land-into-trust application for the Chickasaw Nation. The acquisition enabled the Chickasaws to expand their gaming empire by opening a new facility just 45 miles from the Red River Hotel and Casino, a Comanche property in Devol, Oklahoma.

"The operation at Devol is the economic lifeline of the Comanche Nation: The sixty million dollars in net annual revenue that flow from the Red River Hotel and Casino – just 6% of the yearly take from Chickasaw’s several dozen operations – is more than 60% of the funds necessary for the Comanche to sustain vital tribal operations and social service programs," the tribe said in its petition to the high court.

Despite the economic impacts, a federal judge refused to stop the RiverStar Casino from opening in March 2018. The 10th Circuit Court of Appeals did the same in a December 2018 decision that stands as a result of the order from Washington.

The Poarch Band of Creek Indians owns and operates the Wind Creek Casino in Atmore, Alabama, where an employee is accused of causing an automobile accident. Photo: Wind Creek Atmore

Tribal sovereign immunity

After a lengthy wait, the Trump administration finally submitted its views in Poarch Band of Creek Indians v. Wilkes. A brief filed May 21 urges the Supreme Court to take into account efforts being made by the Poarch Band of Creek Indians to change their tribal sovereignty laws.

"The tribe has proposed to revise its laws to waive its sovereign immunity," the 19-page brief, which the Supreme Court requested seven months ago, states.

The changes, in effect, would allow individuals to pursue claims against the Poarch Band in tribal court. That would presumably apply to the non-Indian plaintiffs who are accusing a tribal gaming employee of causing an automobile accident in January 2015.

The position taken by the Department of Justice in the brief somewhat runs counter to that of the tribe's. At issue is an Alabama Supreme Court decision which allowed the lawsuit to proceed in state court -- the tribe wants that ruling reversed.

But DOJ's views, if adopted by the Supreme Court, would still help out the tribe once it adopts the proposed changes. The brief calls for the tribe's petition to be granted and for the negative Alabama ruling to be vacated -- essentially stricken from the record -- in order for a more complete record to be established in the case.

In the event that the tribe fails to approve the sovereign immunity law, the government calls for the petition to be denied, contending the lower ruling won't have much of an impact in Indian Country.

"Although the Alabama Supreme Court’s decision is erroneous, it is an outlier," attorneys for the Trump administration wrote in the brief. "Given the clear conflict between the decision below and this court’s precedent, other state and federal court are unlikely to adopt its reasoning or conclusion."

The tribe's proposed sovereign immunity law was discussed at a May 16 council meeting, according to the agenda. A vote could occur at the next meeting on June 6. The subsequent meeting takes place on June 20, according to a calendar published in the June 2019 issue of the Poarch Creek News.

But now it's a wait and see game. The Supreme Court has yet to schedule the petition for consideration as of Tuesday evening, according to Docket No. 17-1175.

'This Land'

With the countdown set on the final Indian law case of the term, Cherokee writer, advocate and language learner Rebecca Nagle is debuting her podcast, This Land on June 3. The show takes a big picture and personal look at Carpenter v. Murphy.

The dispute arose out of a murder prosecution of a citizen of the Muscogee (Creek) Nation. But the outcome also will affect the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation, whose lands cover a significant portion of Oklahoma.

"The reservations of five tribes and half the land in Oklahoma—19 million acres—hang in the balance of this case," Nagle writes in the introductory post about her podcast.

"The Court will rule between now and the end of June, and a decision could come any week," she notes. "Will the Supreme Court uphold the treaty rights of five tribes in Oklahoma and order the largest restoration of tribal land in U.S. history? Or will it take that land away from us—again?"

Leaders of the five tribes met this morning at @WinStarWorld for the spring quarterly Inter-Tribal Council of the Five Civilized Tribes meeting. Thank you @ChickasawNation for your gracious hospitality! pic.twitter.com/Lr6LsofTmM
— CherokeeNation (@CherokeeNation) April 12, 2019

In a historic August 2017 decision, the 10th Circuit Court of Appeals held that the Creek Reservation, which was recognized by a treaty signed in 1866, continues to exist. That means crimes committed by Creek citizens -- or any Native American for that matter -- are to be handled in tribal or federal court.

Federal proceedings occur throughout Indian Country on a regular basis. But the Trump administration, instead of advancing the trust and treaty obligations of the federal government, argues that the reservations of the five tribes cited by Nagle have been diminished by Congress, meaning the state can exercise jurisdiction over them.

"The law is clearly on our side, but that doesn’t mean we will win," Nagle writes. "Powerful interests including the Trump administration and the oil and gas industry have lined up against the tribes."

Nagle's podcast, hosted by Crooked Media, can be heard on crooked.com. Listeners can subscribe through Apple Podcasts, Stitcher, Tune In and Spotify.

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