Supreme Court passes on more Indian law petitions as decision looms in big case

Tuesday, June 11, 2019  

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 and principles.

"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 v. Wyoming. 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."

The two decisions serve as the backdrop to Carpenter v. Murphy, 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 exist.

Murphy 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 Rebecca Nagle, 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.

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

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.

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.

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.

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.

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.

• Bearcomesout 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 Cheyenne Tribe 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 Tawnya Bearcomesout, who has already been punished for the crime, can be tried by both sovereigns without violating her constitutional rights.

They released only snoozer again today, unless you're into off-shore drilling issues.

The next two weeks are shaping up to be a doozy: Murphy, Gundy, Gamble, gerrymandering, census, Kisor.

— Lajka in Orbit (@lajkainorbit) June 10, 2019

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.

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.

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

Indian Country endures another long wait for Supreme Court decision (June 4, 2019)
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)