Indian Country endures another long wait for Supreme Court decision

Tuesday, June 4, 2019  

Anticipation is building as Indian Country waits for the decision in one of the most consequential U.S. Supreme Court cases in recent history.

Oral arguments in Carpenter v. Murphy took place on November 27, 2018. More than six months later, it's one of the oldest cases on the docket without a ruling.

In fact, only two cases -- one argued on October 2 and another on November 5 -- are older, according to statistics kept by SCOTUSblog, the leading site that focuses on the nation's highest court.

But as the justices continued their work in the nation's capital on Monday, they did not release a decision in the matter, whose outcome will affect millions of acres of land that were promised to five tribes by treaty more than 150 years ago.

"People might think that these broken promises that are more than a century old don't matter today. But they have everything to do with the present," Rebecca Nagle, a citizen of the Cherokee Nation said on the debut episode of her podcast This Land, which focuses on the history of the case and its implications for Indian Country.

As Nagle observes on her show, the "present" includes the fate of Patrick Dwayne Murphy, a citizen of the Muscogee (Creek) Nation. He's on death row in Oklahoma, having been convicted of murdering a fellow Creek citizen in 1999.

But since the incident took place on an Indian allotment within the boundaries of the reservation promised to his tribe, the 10th Circuit Court of Appeals ruled that Murphy must instead be prosecuted in the federal system, where most criminal matters in tribal communities are handled. The historic decision essentially held the U.S. accountable to a treaty signed in 1866.

Murphy's victory, however, is being challenged by the state of Oklahoma and by another powerful entity. On behalf of the federal government, the Trump administration, rather than affirm its treaty and trust obligations to tribes, has taken the position that the Creek Reservation no longer exists because of actions -- some might say violations -- taken by Congress in the subsequent years.

"Congress, as it always does in transforming a territory to a state, changed the territorial domain from here the tribes to the state and then it vested the governmental authority over that domain in the state because that domain had become the states, the general governmental authority," Deputy Solicitor General Edwin Kneedler of the Department of Justice told the Supreme Court during oral arguments last November.

Watching and waiting... https://t.co/Vrktsjpd38

— Rebecca Nagle (@rebeccanagle) June 3, 2019

Such line of thinking helps explain the high stakes in Murphy. Should the Supreme Court agree with the state and the federal government, the Muscogee (Creek) Nation isn't the only tribe faced with a broken treaty.

Indeed, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation would also be impacted by a negative ruling in the case. Overall, the lands promised by treaties to the so-called Five Civilized Tribes total about 19 million acres, Nagle reports on This Land.

The treaties are to remain in force "for as long as the waters run and the grass grows," Nagle notes on the podcast, which will run for eight episodes, with new installments delivered every Monday.

Nagle of course will break news when a decision emerges from Washington, more than 1,200 miles from the lands at issue in the case, which stands out for several reasons. It's unusual in that the justices ordered the parties to submit additional briefs following last November's hearing, something that almost never happens in an Indian law case.

It's even more unusual in that Justice Neil Gorsuch, who has become a reliable ally for tribal interests despite being picked by a president whose policies and actions have been disastrous for Indian Country, has recused himself. He hasn't publicly explained why but it's likely that he came into contact with the case when he served on the 10th Circuit before joining the Supreme Court.

His absence leaves Murphy up to 8 justices, raising the possibility of a 4-4 tie. That's happened not just once, but twice in an Indian law case in the last three years.

Like those two prior cases, a deadlock in Murphy would represent a win for tribal interests. It would merely affirm the 10th Circuit victory in favor of the Creek Reservation.

But a tie would reveal little about the thoughts of the justices, making it more difficult for tribes and their advocates to come up with effective strategies for protecting their rights. In both instances, the Supreme Court simply issued "per curiam" decisions consisting of one sentence on one single page.

It's been 190 days since oral arguments in Murphy but Indian Country is used to long waits in contentious Supreme Court cases.

The decision in Michigan v. Bay Mills Indian Community, a sovereign immunity case that went in favor of tribal interests, arrived on May 27, 2014. That was 177 days after the justices heard arguments on December 2, 2013.

More recently, the decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case, emerged from the Supreme Court on June 23, 2016, some 200 days later. That turned out to be one of the 4-4 ties in which the Mississippi Band of Choctaw Indians secured its right to exercise authority over a lawsuit involving a non-Indian party.

The Supreme Court also likes to make Indian Country wait for decisions until the final weeks of their terms, which start in October and typically run to the end of June. For Washington v. U.S., the ruling dropped on June 11, 2018, and it turned out to be another 4-4 tie, although one that upheld a victory in favor of treaty rights in Washington state.

In Adoptive Couple v. Baby Girl, the justices waited until June 25, 2013, to issue a ruling. It turned out to be a defeat -- the court allowed a non-Indian couple to adopt the child of a Cherokee Nation citizen over his objections.

I think the best we can hope for is a 4-4 split which upholds the favorable ruling below. I’m afraid the Justices will abandon the Solem test and come up with a justification to rule for Oklahoma.

— Joe Keene (@osage25) May 28, 2019

In addition to meeting on Monday and issuing four decisions, the Supreme Court issued an order list. In it, the justices denied a petition in Allergan, Inc. v. Teva Pharmaceuticals USA, Inc., meaning the case wasn't added to the docket.

Though it's hard to tell from the name alone, the case was involved the Saint Regis Mohawk Tribe, whose leaders entered into an agreement to acquire the patents of a popular drug used to treat dry eye conditions. The Federal Circuit Court of Appeals opened the door for challenges to those patents, a ruling that stands as a result of the denied petition.

Previously, the Supreme Court denied a petition in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, Inc., which was about sovereign immunity. In this instance, the Federal Circuit held that the tribe can't assert immunity in proceedings before the U.S. Patent Trial and Appeal Board, a ruling that also remains on the books.

This Thursday, the Supreme Court is holding what it calls a "conference," during which pending petitions are considered for possible addition to the docket. Three petitions of interest -- all coincidentally matters from Washington state -- are being reviewed during the conference, which takes place behind closed doors.

• Teck Metals LTD v. The Confederated Tribes of the Colville Reservation. At issue is a victory won by the Colville Tribes to hold a Canadian company responsible for dumping millions of tons of mining waste into Columbia River for more than a century. The pollution is coming from the world’s largest lead and zinc smelter in British Columbia, Canada. Granting of the petition would represent a setback for the tribe's efforts to protect its homelands in Washington from the waste.

• Mitchell, et al. v. Tulalip Tribes of Washington. At issue is whether the Tulalip Tribes can exercise jurisdiction over non-Indian fee land on the reservation in Washington. The non-Indian plaintiffs lost the case and are trying to get the Supreme Court to revive it.

• King Mountain Tobacco Company, Inc. v. United States. In April, the Supreme Court affirmed the treaty rights of the Yakama Nation in connection with state-imposed taxes on a gasoline business on the reservation in Washington. A tobacco business is hoping the ruling brings the same benefits to his operation in connection with $58 million in federal taxes.

Should any of the petitions be granted, the Supreme Court will announce it in an order list. Typically, the list is issued on the Monday following a Thursday conference.

The Supreme Court has additional conferences scheduled, including one on June 20. That's when the petition in Poarch Band of Creek Indians v. Wilkes is to be considered, according to an update made to the docket on Tuesday.

At issue is whether an employee of the Poarch Band of Creek Indians is entitled to sovereign immunity in connection with a vehicle accident that occurred in Alabama. The tribe argues that the employee enjoys immunity protections while the non-Indian plaintiffs who were injured in the accident contend otherwise.

The Alabama Supreme Court sided with the non-Indians in a decision now being challenged by the tribe. But the petition has been in a holding pattern in order for the Trump administration to submit a brief in the matter.

The 19-page brief arrived on May 21. In it, attorneys from the Department of Justice urged the Supreme Court not the take the case in the event the tribe adopts changes to its sovereign immunity laws in a matter that would allow the non-Indians to pursue their lawsuit in tribal court.

If the changes are adopted, which could happen at a tribal council meeting on Thursday, the government says the Supreme Court should grant the petition and vacate, or erase, the negative Alabama ruling, on order for a more complete record to be developed in the case.

But if the tribe fails to approve the new 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 opinions released today were BORING! I can't believe I got excited for that!

Outside of Murphy, still some decisions with big implications for Indian Country, like Gamble.

— Lajka in Orbit (@lajkainorbit) June 3, 2019

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

Kerry Drake: U.S. Supreme Court got it right in Crow Tribe hunting case (May 30, 2019)
Supreme Court enters final stretch with no new Indian law cases on docket (May 28, 2019)
Supreme Court winds down surprising term with two wins for tribal treaties (May 23, 2019)
Harold Frazier: Tribal treaties are still the supreme law of the land (May 22, 2019)
SCOTUSblog: Supreme Court sides with Crow hunter in treaty rights case (May 21, 2019)
Supreme Court backs off-reservation treaty rights of Crow Tribe (May 20, 2019)
Indian Country awaits outcome of final cases on Supreme Court docket (April 15, 2019)
Yakama Nation makes major impact with decision in treaty rights case (March 26, 2019)
Gavin Clarkson: Indian Country should thank Donald Trump for Justice Gorsuch (March 20, 2019)
Supreme Court delivers slim victory in Yakama Nation treaty rights case (March 19, 2019)