The U.S. Supreme Court
began its latest term this week with no new Indian law cases on the docket and no news about arguments in one of the most closely-watched disputes in recent history.
The lack of activity at the nation's highest court is unusual. For the past few seasons, tribes and their advocates have been dealing with an unusually large number of cases of importance, affecting a wide range of significant issues, from treaty promises
and land rights
to sovereignty protections
and freedom from taxation
But the October 2019 term
is looking a lot different. There's still just one tribal case on the docket, after the justices took a pass on an Indian Child Welfare Act dispute
on Monday, the first day of the current session.
And looking ahead, there are just a handful of petitions being monitored by the Tribal Supreme Court Project
, a joint initiative of the Native American Rights Fund
and the National Congress of American Indians
. That's far fewer than the dozens that were scrutinized in the last few terms.
This Land by Rebecca Nagle: The Postponement
What's up with Murphy?
The biggest question on everyone's mind is one that can't really be answered. Just what is going on with the Murphy
case from Oklahoma?
As of Tuesday, no one knows for sure. The Supreme Court has yet to schedule another round of oral arguments, after leaving everyone on pins and needles by failing to issue a decision
in the contentious matter at the close of the last term this past June.
So for now the Muscogee (Creek)
doesn't know whether the lands promised by an 1866 treaty continue to exist as Indian Country.
The state of Oklahoma, as well as the Trump administration, believe the tribe's reservation has been diminished to the point that the federal government does not have the authority to prosecute
The lack of activity also means Patrick Dwayne Murphy remains on death row in Oklahoma for a crime committed on those lands.
The Creek citizen argues that the murder of which is accused should have been prosecuted in federal court, a position supported by his tribe and by other Indian nations, scholars, key members of Congress and other experts.
Patrick Dwayne Murphy
is being held in the Oklahoma State Penitentiary in McAlester, according to the
state's Department of Corrections. He is seen here in a photo dated February 5, 2018. Source: OK Offender / OK Department of Corrections
The only known so far is that the case, previously known as Royal v. Murphy
and Carpenter v. Murphy
, can be called Sharp v. Murphy
. It's been in the Supreme Court pipeline so long that it's been through three different wardens of the Oklahoma State Penitentiary, where Murphy has been held for two decades, awaiting execution for the death of a fellow Creek citizen.
The last time the high court set an Indian law case for reargument was nearly 40 years ago. But when it came to Merrion
v. Jicarilla Apache Tribe
, a taxation matter that ultimately went in
favor of Indian interests, the justices quickly scheduled a second hearing once they regrouped for their next term.
No so this time around. The calendars for October
have all been released, with not a Murphy
That leaves January 2020 as the next earliest date for reargument, almost three years after Murphy went before the 10th Circuit Court of Appeals
and argued that the homelands of the Muscogee (Creek) Nation are still Indian Country. The court agreed with him, a decision that the state of Oklahoma is trying to overturn with the help of the Trump administration.
The Indian Child Welfare Act
has been the "gold standard" in child welfare policy since 1978. But compliance remains spotty, especially in states like South Dakota, where judges have been routinely
placing tribal children in non-Indian homes, a situation the federal law was supposed to prevent.
In many instances, Indian parents and guardians were given little notice of placement proceedings, and even if they were, they weren't allowed to present evidence before losing custody of their loved ones. The lack of compliance with ICWA resulted in tribal children being taken away from their communities in every single case.
The picture began to change when the Oglala Sioux Tribe
, along with Lakota parents, went to court. A federal judge eventually concluded that state judges
and state child welfare officials were violating ICWA.
"Indian children, parents and tribes deserve better," Judge Jeffrey L. Viken
wrote in the historic 45-page
from March 2015.
The victory didn't last too long. In a decision issued on September 14, 2018
, the 8th Circuit Court of Appeals
overturned the ruling -- not on the merits or the legitimacy of the state proceedings -- but on legal grounds. The prompted the tribal parties to ask the U.S. Supreme Court
to review the matter.
The petition in Oglala Sioux Tribe v. Fleming
was denied on Monday. As is their usual custom, the justices did not explain why they chose not to hear
But by the time the 8th Circuit issued its ruling about a year ago, the state had already began making changes to its ICWA policies and procedures. Advocates who worked on the case believe the tribes and Indian parents have already won as a result.
“I really doubt that the state will go back to their old ways,” Steven Pevar, a staff attorney at the American Civil Liberties Union, told Native Sun News Today
The Tribal Supreme Court Project
, which began almost two decades ago in response to a string of losses at the nation's highest court, is currently monitoring four petitions of interest in Indian Country.
Alabama-Coushatta Tribe of Texas v. State of Texas (19-403)
. At issue is whether the Alabama-Coushatta
can engage in Class II gaming on its reservation
in Texas. The 5th Circuit Court of Appeals
ruled the tribe cannot even though almost every other Indian nation can do so without state interference. The petition is in the early stages but Indian gaming disputes are rarely accepted by the Supreme Court.
Buchwald Capital Advisors LLC v. Sault Ste. Marie Tribe of Chippewa Indians (18-1218)
. At issue is whether
Sault Ste. Marie Tribe of Chippewa
enjoys sovereign immunity in bankruptcy proceedings
. The 6th Circuit Court of Appeals
ruled in the tribe's favor in connection with a commercial gaming project in Michigan. The petition awaits a response from the tribe, meaning an answer from the Supreme Court is still a few months away.
California Trout v. Hoopa Valley Tribe (19-257)
. At issue is whether the Hoopa Valley Tribe
can force the
Federal Energy Regulatory Commission
to move forward with the licensing of a hydropower project in northern California. In a January 25 decision
, the D.C. Circuit Court of Appeals
ruled in favor of the tribe, a development hailed as a positive step in protecting salmon runs and water quality
on the Klamath River. The petition is still in the early stages but has already drawn the interest of nearly two dozen states
, all arguing that the tribe's victory should be overturned.
Knighton v. Cedarville Rancheria of Northern Paiute Indians (19-131)
. At issue is whether the Cedarville Rancheria of Northern Paiute Indians
can exercise authority over a non-Indian former employee. The 9th Circuit Court of Appeals
sided with the tribe in a March 13 decision
. The former employee is asking the Supreme Court to overturn the ruling, claiming the tribe's judicial system lacks jurisdiction over her. Briefing is nearly complete so an answer to that request could be coming soon.
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