Supreme Court opens new term with little new Indian law activity

Wednesday, October 9, 2019  

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.

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) Nation 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 crimes there.

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.

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, November and December have all been released, with not a Murphy in sight.

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.

Some bad news for the Oglala Sioux Tribe, the Rosebud Sioux Tribe and Indian parents and guardians seeking to hold the state of South Dakota accountable under the Indian Child Welfare Act. The Supreme Court on Monday morning refused to hear their appeal in the #DefendICWA case. pic.twitter.com/K7vYKvOJuX

— indianz.com (@indianz) October 7, 2019

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 and the Rosebud 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 ruling from March 2015.

Despite loss, South Dakota already made #ICWA changes requested by the tribal plaintiffs: “If you lose a case where the defendants have already made the changes we asked for, then essentially the families have already won.” More from Native Sun News Today: https://t.co/zq2ICkztXi

— indianz.com (@indianz) October 7, 2019

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 the case.

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 last September.

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 Tribe 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 Indians 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.

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