Principal Chief James Floyd of the Muscogee (Creek) Nation announces the results of a tribal economic impact study in Tulsa, Oklahoma, on June 26, 2019. The study showed that the tribe had an impact of $1.4 billion nationwide in 2017, and paid out $443 million in wages and benefits in 2017. Photo: MCN Public Relations

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Indian Country braces for Supreme Court decision in closely-watched case

Wednesday, June 26, 2019

By Acee Agoyo

WASHINGTON, D.C. -- "I'm on pins and needles."

The sentiment, expressed by one tribal citizen from Oklahoma, is shared by many in Indian Country as the U.S. Supreme Court is poised to deliver a decision in one of most consequential cases in recent history.

Anticipation has been building for months. Oral arguments in Carpenter v. Murphy took place on November 27, 2018, making it the oldest case on the docket without a decision.

After the long wait, an answer finally arrives on June 27, 2019, some 153 years after the conclusion of the Treaty with the Creek Indians on June 14, 1866, a government-to-government agreement that once again promised the Muscogee (Creek) Nation a homeland after the tribe had been forced out of its ancestral territory during the genocidal removal era.

So what can Indian Country expect on Thursday? It's the very last day of the Supreme Court's blockbuster October 2018 term, during which three tribal cases, were on the docket, and Indian law advocates are preparing for the possibilities.

Tomorrow is the day!https://t.co/m4lZzCgFjj
— Rebecca Nagle (@rebeccanagle) June 26, 2019

The consensus

Of several experts contacted by Indianz.Com, all of them offered basically the same prediction. With Justice Neil Gorsuch, who has one of the most extensive (and favorable) records in Indian law in history, out of the picture, they believe the remaining eight members of the Supreme Court will be unable to reach a clear decision in Murphy.

Such an outcome would in fact represent a positive outcome. A deadlock in the case means the 10th Circuit Court of Appeals decision upholding the Indian Country status of the Muscogee (Creek) Nation's homelands in Oklahoma would stand.

“With Justice Gorsuch recused, I am hoping for a 4-4 party-line split that will operate to affirm the Tenth Circuit’s decision," said Gabe Galanda, an attorney who belongs to the Round Valley Indian Tribes. He happened to be in the nation's capital on the day the favorable decision in Washington State Department of Licensing v. Cougar Den was announced.

Gavin Clarkson, an attorney and citizen of the Choctaw Nation, also said he was going to "hope and pray" for a 4-4 tie as the final day approaches. This season he attended oral arguments in Herrera v. Wyoming, which also resulted in a win for tribal interests.

"Since this case is unique to Oklahoma and the 10th Circuit, I can see four justices having a sufficient of comfort with leaving the 10th Circuit decision intact," said Clarkson, who is seeking the Republican party's nomination for an open U.S. Senate seat in New Mexico.

To learn more about Carpenter v. Murphy, listen to This Land, a podcast by Cherokee citizen Rebecca Nagle @rebeccanagle. Over four episodes so far, she has explored why the case is so important. It's about sovereignty, treaties, broken promises and more. https://t.co/A9w5jaNgv6
— indianz.com (@indianz) June 26, 2019

The 'wild card'

Keith Harper, an attorney, former U.S. ambassador and Cherokee Nation citizen, also anticipates a 4-4 tie on Thursday. But both he and Clarkson also raised the possibility of a 5-3 loss in Murphy.

A defeat, these experts believe, will come at the hands of Justice Ruth Bader Ginsburg. Through she was in the majority in Cougar Den and Herrera, she has gone against Indian Country's interests in taxation, tribal court jurisdiction and sovereignty cases.

"Ginsburg is the wild card," noted Clarkson, who served as a political appointee at the Department of the Interior in 2017, before the Trump administration took notice of Murphy and argued that the homelands of the Muscogee (Creek) Nation, as well as those of the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation, were diminished by Congress in the early 1900s, after their treaties were signed.

Under this line of thinking, Ginsburg will side with the conservative leaning members of the court -- Chief Justice John G. Roberts Jr., Justice Clarence Thomas, Justice Samuel Alito and Justice Brett Kavanaugh, her newest colleague. Together, they could form a majority that will overturn the 10th Circuit's positive ruling.

"She only asked one question at oral argument," Clarkson said and focused on the negative aspects of affirming the Indian Country status of tribal homelands.

"Can you state again what is the effect of this decision on areas other than state versus federal jurisdiction?" Ginsburg asked last November,

An attorney from the Department of Justice gladly obliged, listing off concerns about the difficulty in assessing taxes, prosecuting criminal cases and even selling liquor in Indian Country.

"Ten percent of the population is Indian," Deputy Solicitor General Edwin Kneedler said, seeming to imply that all of the Native Americans in Oklahoma are somehow going to be out of the state's reach if the 10th Circuit decision is affirmed.

The non-starter

No experts are predicting an outright victory in Murphy. They see that as impossible since Justice Neil Gorsuch recused himself, for reasons that he hasn't put in writing.

"If Gorsuch were participating, I would predict 5-4 with Gorsuch leading the liberal justices," said Clarkson.

In this wishful scenario, the majority would include Gorsuch, Justice Stephen G. Breyer, Justice Sonia Sotomayor and Justice Elena Kagan, plus Justice Ruth Bader Ginsburg, despite her mixed history in Indian law cases.

Gorsuch served on the 10th Circuit Court of Appeals for ten years, developing a record so strong that he won the endorsement of tribal leaders, tribal organizations and Indian law experts after being nominated by President Donald Trump in 2017. The level of support was unprecedented.

But his knowledge -- and ability to sway colleagues like Ginsburg -- won't come into play in Murphy. Though he didn't rule in the case he may have come into contact with the case at some point on the 10th Circuit, thus prompting his recusal.

"The judgement below is affirmed by an equally divided court": If you're wondering what happens when the Supreme Court deadlocks in a particular case, this is how it sounded in Washington v US, a tribal treaty rights case, on June 11, 2018.https://t.co/oQgERud1GG
— indianz.com (@indianz) June 26, 2019

The final day

Five cases argued during the Supreme Court's October 2018, including Murphy, remain unresolved. The answers to all five will come on Thursday, starting at 10am Eastern time.

Cameras, cell phones and other devices aren't allowed inside the courtroom so there will be no one tweeting, snapchatting or instagramming the results. But the popular SCOTUSBlog site offers an easy way to follow along with a liveblog, which is updated with news of opinions when one of the operators goes back and forth between the courtroom and the press room inside the building.

For those interested in a more hands-on approach, repeatedly refreshing the Supreme Court's opinion page also works. It's updated with a new decision, in PDF format, at about the same time SCOTUSBlog posts its results.

In the event of a 4-4 tie in Murphy, Indian Country will most likely have to wait until the other four opinions are announced. That's because Chief Justice John G. Roberts Jr. will announce the deadlock from the bench at the very end of the session.

And on June 23, 2016, the Supreme Court deadlocked in two cases. One was Dollar General v Mississippi Band of Choctaw Indians, a tribal jurisdiction case. https://t.co/417jrXuTiw
— indianz.com (@indianz) June 26, 2019

He's done that twice in Indian law cases in the last three years. The most recent was Washington v. U.S., which ended up affirming a victory for 21 treaty tribes.

"In case 17-269, Washington v. United States, the judgement below is affirmed by an equally divided court," Roberts said on June 11, 2016. He also noted that Justice Anthony Kennedy, who announced his retirement a couple of weeks later, had recused himself because he had come into contact with the long-running case , which dates to the 1970s, when he served on the 9th Circuit Court of Appeals.

Two years prior, Roberts had the pleasure of announcing two deadlocks on the same day, including one in Dollar General Corporation v. Mississippi Band of Choctaw Indians. The outcome, delivered on June 23, 2016, resulted in a victory for tribal interests.

In both instances, the court did not explain where the justices fell. So deciphering what might happen in Murphy will be up for even more speculation as the nation's highest court prepares for a new term with no Indian law cases on the docket.

"I'm on pins and needles."