Good Monday morning! It's another day of watching and waiting at the Supreme Court. In an order list, the justices denied petitions in three Indian law cases, meaning no new Indian law cases on the docket for now. #IndianLaw #SupremeCourt pic.twitter.com/3uMqUIbcqA
— indianz.com (@indianz) June 10, 2019
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.
• Teck
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
Appeals held the company liable under U.S. law. The favorable decision stands as a result of the denial of the petition on Monday.
• 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 at the 9th Circuit Court of
Appeals, a favorable ruling that stands as a result of the Supreme Court's action on Monday.
• King
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 in Washington,
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.
Another conference
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.
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.
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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
American Indians 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.
• Oglala
Sioux Tribe, et al. v. Fleming (18-1245). This one could be a big one because it's about the Indian Child
Welfare Act, the 1978 law that's been in the news recently.
In Fleming, 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.
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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. Gamble, 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 and Murphy 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.They released only snoozer again today, unless you're into off-shore drilling issues.
— Lajka in Orbit (@lajkainorbit) June 10, 2019
The next two weeks are shaping up to be a doozy: Murphy, Gundy, Gamble, gerrymandering, census, Kisor.
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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
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 was another 4-4 tie, 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.
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