WASHINGTON, D.C. -- After a blockbuster season in which tribal treaties have been front and center
, it looks like the U.S. Supreme Court
is taking a little break from Indian Country.
The justices met on Monday and took a pass on three Indian law
matters. With only a handful of petitions of interest on the horizon
, the nation's highest court has yet to add any new tribal cases to its workload.
Though the upcoming docket is still taking shape, it stands in stark contrast to the current term, which began in October. The justices heard three Indian law cases and have so far issued favorable decisions in two of them, affirming the rights
of tribal citizens to follow the treaties their ancestors signed
more than a century ago.
On March 19, the justices confirmed that citizens of the Yakama Nation
are not required to pay a gasoline tax to the state of Washington. Though decided by a close 5-4 vote, the ruling in Washington
State Department of Licensing v. Cougar Den
served as a memorable lesson in treaty law
"Our historical chiefs negotiated for that right to be maintained and it was memorialized within the articles of the Yakama Treaty of 1855 between the Yakama Nation and the United States," Chairman JoDe Goudy, who was famously barred from attending oral arguments because he was wearing a traditional headdress
, said after the ruling.
The court's close call on treaties continued with a May 20 decision in Herrera
. By another 5-4 vote, the justices confirmed that citizens of the Crow Tribe
did not lose their rights simply because Wyoming became a state.
"This decision is about of way of life," Chairman Alvin "AJ" Not Afraid, Jr. said after the ruling. "I hunt and fish with my children to feed our family. It is one way that we pass on our culture to future generations. That is why it was included in our treaty with the U.S. government, and why this decision is important for each our tribal members and their families."
Land, a podcast by Rebecca Nagle
The two decisions serve as the backdrop to Carpenter
, the third Indian law case from the current term. The outcome will determine whether the reservation of the Muscogee (Creek) Nation
-- which was set aside by treaty -- continues to
is named for the Creek citizen who won a historic appeals court decision
in favor of the reservation
. If it stands, Patrick Dwayne Murphy will be taken off death row in Oklahoma in connection with a murder committed in Indian Country and would instead face federal prosecution for the crime
But it's not just Murphy who is affected by the outcome. When a ruling comes out before the end of the month, it's going to a big one for the tribe's homelands.
"That ties us to who we are. That ties us to our sovereignty," Muscogee Nation Attorney General Kevin Dellinger says on the second episode of This Land
, a podcast that focuses on the case and its implications for Indian Country.
"Without the land, we lose that. We don't have that," Dellinger tells
, a citizen of the Cherokee Nation
who is examining the case over eight episodes, breaking to deliver the news of the decision when it drops.
No new cases
The Supreme Court's order list
on Monday runs for eight pages but all of the petitions of interest
are in the front, making it easy to learn that the justices haven't granted any new Indian law cases in months. In the case of two of the petitions, the news was good for tribal interests.
Metals LTD v. The Confederated Tribes of the Colville Reservation
. Denial of the petition represents another victory for the Colville Tribes
and their efforts to protect their homelands
in Washington state from pollution.
A Canadian company has been dumping millions of tons of mining waste into the Columbia River
for more than a century. Through the waste comes from the world’s
largest lead and zinc smelter
across the border in British Columbia, Canada, the 9th Circuit Court of
held the company liable under U.S. law. The favorable decision stands as a result of the denial of the petition
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
at the 9th Circuit Court of
, a favorable ruling that stands as a result of the Supreme Court's action
Mountain Tobacco Company, Inc. v. United States
In this case, the news wasn't so great for the owner of a tobacco business on the Yakama Nation
Though the Supreme Court, in Cougar Den
, affirmed the tribe's treaty rights in
connection with state-imposed
taxes on the reservation
it won't be doing the same with respect to federally-imposed taxes
on the reservation. As a result of the denial of the petition
, a 9th Circuit Court of Appeals
ruling against King Mountain Tobacco stands, leaving the company on the hook for a whopping $58 million in federal taxes.
With the Supreme Court docket still taking shape, the
justices are being presented with the opportunity to hear another Indian law case on June 20. That's when the petition in Poarch Band of Creek Indians v. Wilkes
is to be considered.
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 was kept in limbo for months while Trump administration developed a brief in the matter.
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.
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
Those changes were in fact approved at a council meeting on June 6, the tribe said in a second supplemental brief
filed a day later. But in a break from the government's position, the tribe believes the petition should still be granted in order to send a strong message to the Alabama court.
"Petitioners do not believe that it is appropriate to grant, vacate, and remand for the Alabama Supreme Court to reconsider its decision for a simple reason: There is little doubt that the court will reaffirm its previous decision," the tribe said in a supplemental brief
filed on June 5.
The non-Indians, not surprisingly, don't agree with the tribe or the government. They still want the Supreme Court to reject the petition, regardless of the new waiver of sovereign immunity in Poarch Creek law.
"Had the tribe wanted the Alabama courts to consider the availability of tribal court or a tribal administrative process in this litigation, it could have amended its code long ago," attorneys for Casey Marie Wilkes and Alexander Jack Russell wrote in their June 4 supplemental brief
. The accident at issue occurred more then four years ago, they note.
The route the Supreme Court takes should be known soon enough after the June 20 conference. The justices typically issue an order list on the Monday following a Thursday conference.
On the horizon
Besides Poarch Creek
, three petitions of interest
are being watched by the Tribal Supreme Court Project
, a joint initiative of the National Congress of
and the Native
American Rights Fund
Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe of Chippewa Indians (18-1218)
. At issue is whether the Sault Ste. Marie Tribe of Chippewa Indians
is entitled to sovereign immunity in bankruptcy proceedings.
The 6th Circuit Court of Appeals
ruled in favor of the tribe
but non-Indian parties are seeking to reverse the decision.
The Supreme Court, though, appears to be in no rush to consider the petition. The justices have granted the tribe two extensions to respond to the petition, with the brief now due June 19, according to the docket sheet
Sioux Tribe, et al. v. Fleming (18-1245)
. This one could be a big one because it's about the Indian Child
, the 1978 law that's been in the news
, the Oglala Sioux Tribe
, the Rosebud Sioux Tribe
and Indian parents and guardians won a huge victory when a federal judge ruled that officials in South Dakota have been routinely violating ICWA
. At issue were the repeated removals of Indian children from their homes, with little notice to tribes or their families
The 8th Circuit Court of Appeals
, however, reversed, not on the merits or legitimacy of the removals but on legal grounds. The prompted the tribal parties to ask the Supreme Court to review the matter.
Tony Wood, left, and
Frank LaMere, citizens of the Winnebago Tribe, banner during the 16th
Annual Memorial March to Honor Our Lost Children in Sioux City, Iowa, on
November 21, 2018. The march began in response to the deaths of three Indian
children in state-supervised foster care.
Photo by Kevin Abourezk
The justices, though, appear to be struggling with the case. The state parties waived their right to respond, a sign that they thought the petition was of no interest to the court.
So the justices asked the state parties to respond. Their briefs were originally due June 7, but they are now due June 28, according to the docket sheet
v. United States (17-6856)
. This one's been around a long, long time -- the petition was filed 18 months ago.
At issue is whether a citizen of the Northern
can be prosecuted by her government and by the United States
for killing her common-law husband, whom she accused of subjecting her to domestic violence. The 9th Circuit Court of Appeals
, relying on Supreme Court precedent, ruled that
, who has already been punished for the crime, can be tried by both sovereigns without violating her constitutional rights.
But the Supreme Court has repeatedly declined to resolve her petition
one way or the other. That's partly because the Trump administration urged the justices to wait until they rule on Gamble v. United States
, a similar case involving prosecutions by separate sovereigns.
, however, is proving troublesome for the high court. Oral arguments took place on December 6, 2018, making it almost as old as Murphy
Observers think Gamble
will come down to the final days of the Supreme Court's term. The answers to both pose significant implications for the prosecution of crimes in Indian Country.
The U.S. Supreme Court
at night. Photo by Indianz.Com (CC
End of term waits
Speaking of Murphy
, it's been 197 days
since oral arguments 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. It turned out to be a 4-4 tie in which the Mississippi Band of Choctaw
secured its right to exercise authority over a lawsuit involving a
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
, the ruling dropped on June 11, 2018, and it was another 4-4 tie, one that upheld a victory in favor of treaty rights in
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
the child of a Cherokee Nation citizen
over his objections.
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