Leaders and employees of the Muscogee (Creek) Nation celebrated the opening of the Mvskoke Market at their tribal complex in Okmulgee, Oklahoma, on June 17, 2019. The status of the tribe's reservation is at issue in a pending decision at the U.S. Supreme Court. Photo: Muscogee (Creek) Nation

Supreme Court affirms sovereignty doctrine as wait continues in tribal case

WASHINGTON, D.C. -- It only took 194 days for the U.S. Supreme Court to issue a sovereignty decision with implications for criminal cases in Indian Country.

Oral arguments in Gamble v. United States occurred on December 6, 2018, making it was one of the oldest cases on the docket without a decision. The long wait had some observers wondering if the justices were having second thoughts about a long-standing doctrine that allows offenders to be prosecuted for the same crime by separate sovereign governments.

The speculation finally ended on Monday -- but without a major change in law. By a vote of 7-2, the court affirmed the dual-sovereignty doctrine, leaving in place a system of criminal prosecution that dates back centuries.

"We have long held that a crime under one sovereign’s laws is not 'the same offence' as a crime under the laws of another sovereign," Justice Samuel Alito explained in the opinion for the court. "Under this 'dual­-sovereignty' doc­trine, a state may prosecute a defendant under state law even if the federal government has prosecuted him for the same conduct under a federal statute."

Indianz.Com on SoundCloud: U.S. Supreme Court - Gamble v. United States - December 6, 2018

Although Alito didn't outright say, the dual-sovereignty doctrine also applies to prosecutions in Indian Country. In U.S. v. Lara, the Supreme Court back in 2004 confirmed that Native Americans can be prosecuted under tribal law and federal law for the same offense.

When a tribe prosecutes a Native person, it is doing so "in its capacity of a separate sovereign," Justice Stephen G. Breyer, who joined Alito's opinion in Gamble, wrote at the time, correcting a lower court that had come to a different conclusion.

While Gamble doesn't upset the state of affairs in Indian Country, it has an immediate impact on one Native person. Tawnya Bearcomesout, a citizen of the Northern Cheyenne Tribe who was convicted of killing her common-law husband, also challenged the dual-sovereignty doctrine.

But the justices never resolved her petition despite it being on their radar for 18 months. That too suggested some members of the court -- it was impossible to know who because no explanation was ever provided for the repeated delays -- were having second thoughts about the tribes as separate sovereigns precedent.

The members of the U.S. Supreme Court sit for an official portrait. Front row, from left: Associate Justice Stephen G. Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel A. Alito. Back row, from left: Associate Justice Neil M. Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Brett M. Kavanaugh. Photo: Fred Schilling, Collection of the Supreme Court of the United States

An answer of sorts emerged on Monday -- but not an immediately clear one. First there was Justice Clarence Thomas, who at one point was speculated to be the reason for the curious state of Bearcomesout v. United States.

Yet Thomas let everyone know that he supports the dual-sovereignty doctrine, so he was part of the majority in Gamble. Still, he wrote separately to raise questions about the court's reliance on precedent, calling out his colleagues for not being willing to overturn "demonstrably erroneous decisions."

"When faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it," Thomas wrote.

Thomas did not give any examples of cases he believes are wrongly decided. But in the past he has questioned long-standing principles of Indian law and policy, such as those affecting tribal homelands, the federal-tribal trust relationship, and, yes, even tribal sovereignty.

"If a prior decision demonstrably erred in interpreting such a law, federal judges should exercise the judicial power — not perpetuate a usurpation of the legislative power — and correct the error," Thomas wrote in his concurring opinion in Gamble.

The U.S. Supreme Court at night. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Then there was Justice Ruth Bader Ginsburg, whose record on Indian law is mixed. Unlike Thomas, she was willing to overturn the dual-sovereignty doctrine because of its impact on the rights and liberties of individuals.

"Different parts of the 'WHOLE' United States should not be positioned to prosecute a defendant a second time for the same offense," Ginsburg wrote in the dissent, evoking the "one nation" arguments some anti-Indian groups and conservative lawmakers use in an attempt to undermine tribal sovereignty.

Finally, another dissent was delivered by Justice Neil Gorsuch, who has emerged as a reliable ally for tribal interests in his two years on the court. He too dissented and he was only one who brought up Lara, one of the most recent cases to address the dual-sovereignty doctrine.

But his reference to the precedent only came up in a footnote and it had nothing to do with Indian Country. It was instead tied to a series of cases that arose in the United Kingdom during the 17th and 18th centuries.

"Indeed, though England ruled Wales at the time, a contemporaneous lawyer might have thought that Wales’ authority to prosecute a defendant derived at least in part from its earlier status as 'an absolute and undependent Kingdom' rather than purely from authority delegated by England," Gorsuch wrote in in the dissent, calling out his colleagues for refusing to agree with his premise that "our federal and state governments share the same fundamental law and source of authority."

Supreme Court Decision: Gamble v. United States
Syllabus | Opinion [Alito] | Concurrence [Thomas] | Dissent [Ginsburg] | Dissent [Gorsuch]

Supreme Court Documents: Gamble v. United States
Docket No. 17-646 | Questions Presented | Oral Argument Transcript

The Chief Little Wolf Capitol Building of the Northern Cheyenne Tribe, located in Lame Deer, Montana. Photo: Jimmy Emerson

Tawnya Bearcomesout
With Gamble out of the way, the Supreme Court is finally ready to resolve Tawnya Bearcomesout's long-delayed petition at a conference this Thursday. The docket sheet in her case, No. 17-6856, was updated on Monday after the long-awaited ruling came out.

Since a clear majority of justices support the dual-sovereignty doctrine, it seems Bearcomesout v. United States will be denied. Regardless of the answer, it will have little impact on Bearcomesout's case -- she has already served her separate tribal and federal sentences for her crime.

Bearcomesout pleaded guilty to one charge of involuntary manslaughter, admitting she stabbed and killed her husband, identified in court filings as "B.B." According to federal prosecutors, she said she was attacked at their home on the Northern Cheyenne Reservation in Montana.

"Bearcomesout stated that she and B.B. got into an altercation on the night of his death and that he hit her head against the sink. She explained that she stabbed B.B. because he was beating on her and nobody was helping her," an offer of proof filed by federal prosecutors stated.

Bearcomesout suffered injuries during the November 2014 fight, according to the document. In her subsequent petition to the Supreme Court, her federal public defenders said she had a "black eye and several cuts on her face and head."

In November 2016, a federal judge sentenced Bearcomesout to time served. She had already spent 17 months in tribal custody so she had basically served all of the time that would have been imposed on her under the terms of her plea agreement with the federal government.

But as Bearcomesout was taking her case to the 9th Circuit Court of Appeals, a right she reserved in her plea agreement, she got into trouble and violated the terms of her release by failing to participate in substance abuse testing and substance abuse treatment. She also failed to make payments toward restitution to her tribe and to her victim's family.

Around the same time, she pleaded guilty to driving under the influence in Northern Cheyenne court. Alcohol had been a factor in the death of Brett Beckman, who had been her common-law husband.

Bearcomesout ended up serving another six months in federal prison for 11 violations of her probation. But after being released in January 2018, she was again arrested in July of last year and later admitted to nine additional violations. She was finally released from federal custody last September, while her petition with the Supreme Court was still in limbo.

"The decision ultimately rendered in Gamble will do nothing to resolve whether Indian tribes are truly sovereign given Congress’s plenary power over Indian persons and the general erosion of tribal sovereignty," her federal defender wrote on September 5, 2018, two days before Bearcomesout was released.

In a statement that has turned out to be true, and in a foreshadowing of the "WHOLE" argument advanced by Justice Ruth Bader Ginsburg, the federal defender wrote that "Gamble will not reconsider this Court's Indian law precedents in the context of successive prosecutions by parts of the United States."

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

The conference
In addition to considering Bearcomesout v. United States at their conference this Thursday, the justices are scheduled to review the petition in Poarch Band of Creek Indians v. Wilkes.

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 on Bearcomesout and Poarch Creek should be known soon enough after the June 20 conference. The justices typically release an order list on the Monday following a Thursday conference.

This Land, a podcast by Rebecca Nagle

The long wait continues
In addition to holding a conference on Thursday, the justices are going to release more opinions. Will Carpenter v. Murphy, the only outstanding Indian law case of the current term, be among them?

It's been 204 days since oral arguments in the case, making it one the second oldest on the docket. Only Gundy v. United States, a criminal matter, is older, having been argued a whopping 260 days ago.

Murphy will determine whether the reservation of the Muscogee (Creek) Nation -- which was set aside by treaty -- continues to exist. Opponents in Oklahoma claim it doesn't but none would go on the record when asked by Rebecca Nagle, a citizen of the Cherokee Nation who is examining the case in her podcast This Land.

As Nagle notes in the third episode, The Opposition includes the state of Oklahoma, the oil and gas industry in Oklahoma, law enforcement in Oklahoma and other business interests in Oklahoma. They argued that the continued existence of the reservations of not just the Muscogee (Creek) Nation but of the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation -- some 19 million acres total -- would wreak havoc on resource development, regulation, criminal prosecutions and a whole host of other matters.

In total, Nagle said she contacted dozens of people connected to the opposition, and even reached out to members of Congress from the state, to get a better understanding of the sweeping claims made in briefs and during arguments on November 27, 2018.

"But no one would talk to us until after the Supreme Court's decision," Nagle reported.

It's time for the 45th annual Muscogee (Creek) Nation Festival! The event runs June 20-23 in Okmulgee, Oklahoma. Photo: Muscogee Nation Festival

Whether or not the decision in Murphy comes out Thursday, 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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