Tribes see slower season at nation's highest court but big cases remain unresolved

Tuesday, October 29, 2019  

ALBUQUERQUE, New Mexico -- Tribal leaders are still paying close attention to the nation's highest court despite a slowdown in cases affecting Indian Country's interests..

The U.S. Supreme Court so far has just one tribal case on the docket for its October 2019 term. But it's a big one -- in fact, it's so complex that the justices were unable to reach a decision in Murphy after it came before them last year.

"That's a monumental case on the restoration of land," Bryce In the Woods, a council member from the Cheyenne River Sioux Tribe, said at the National Congress of American Indians 76th annual convention. He pointed out that millions of acres are at issue.

"I think the justices are looking at about half of Oklahoma," In The Woods said here last Thursday.

“We saw that it was more and more difficult to win these cases”: John Echohawk (Pawnee), executive director of the Native American Rights Fund, is delivering an update on the US Supreme Court at the National Congress of American Indians. #NCAIAnnual19 @NDNrights @NCAI1944 pic.twitter.com/03hwDau5lx

— indianz.com (@indianz) October 24, 2019

Despite the high stakes, experts in Indian law are still scratching their heads when it comes to Murphy. They still don't know why the court failed to determine whether the reservation of the Muscogee (Creek) Nation continues to exist. They also don't know when a new oral argument will take place, nearly a year after the first one.

"There's a lot of speculation why the court didn't rule on the Creek boundary case," said John Echohawk, a citizen of the Pawnee Nation who serves as executive director of the Native American Rights Fund, told tribal leaders in New Mexico's largest city. "We just don't know."

But there is cause to remain hopeful, according to Derrick Beetso, a citizen of the Navajo Nation who serves as NCAI's general counsel. Based on the additional questions posed by the court in an order last December, he believes the justices are looking for a way to resolve the underlying issue in the case -- whether a Creek citizen can be prosecuted in Oklahoma court for allegedly murdering a fellow citizen -- without diminishing the Creek Reservation.

“We want to be a little optimistic here," Beetso said in reference to the supplemental briefs, which so far are the only substantive new documents in the court's hands.

Judging by very recent history, there is real reason to celebrate. Tribes won nearly every case that went before the court during the last two sessions.

"We prevailed on essentially all of them," Echohawk said of the October 2017 term. "Last year was a pretty good year too," he said of the subsequent term.

Going forward, tribes don't have to worry about high-profile challenges, either. Very few petitions have been filed, meaning they don't have to scramble to defend their sovereignty, their treaties and their inherent rights, as was the case for the past few years.

“Right now it looks like we have a much slower term," said Dan Lewerenz, a citizen of the Iowa Tribe of Kansas and Nebraska and a staff attorney at NARF, said last Thursday.

“Right now it looks like we have a much slower term”: Dan Lewerenz (Iowa Tribe) of Native American Rights Fund is delivering an update on the US Supreme Court at the National Congress of American Indians 76th annual convention. #NCAIAnnual19 @NCAI1944 @NDNrights pic.twitter.com/4siTTdziiX

— indianz.com (@indianz) October 24, 2019

But there is one major issue on the horizon. The Tribal Supreme Court Project, a joint initiative of NARF and NCAI, is keeping a close eye on an Indian Child Welfare Act case with significant implications nationwide.

A federal judge shocked Indian Country a year ago by declaring the law, which was enacted by Congress in 1978 to keep tribal children connected to their communities, to be unconstitutional because it is supposedly based on "race." But the 5th Circuit Court of Appeals largely reversed course with a decision upholding iCWA in August.

Although one judge, out of three, disagreed on some finer points of ICWA, the law was otherwise affirmed. Still, the losing parties -- the states of Texas, Indiana and Louisiana, as well as non-Indians who are adopting or trying to adopt Indian children -- have asked a larger panel of judges on the 5th Circuit to rehear the case.

Oral arguments have yet to be scheduled for what is known as an en banc review. Regardless of the outcome, tribes should prepare for further litigation.

“We are certain that the losing side is going to try to bring this case to the Supreme Court," Beetso said of Brackeen.

“This is what we need to do—Come together”: At National Congress of American Indians 76th annual convention, Gil Vigil (Tesuque Pueblo) of National Indian Child Welfare Association credits tribal unity with victory in Indian Child Welfare Act case. #NCAIAnnual19 @NativeChildren pic.twitter.com/uvB7HDdnuV

— indianz.com (@indianz) October 24, 2019

Gil Vigil, a citizen of the Pueblo of Tesuque who serves as president of the National Indian Child Welfare Association, credited tribal unity with the mostly favorable decision from the 5th Circuit. Nearly every federally recognized tribe submitted or signed onto briefs in defense of ICWA at the appellate stage.

“This is what we need to do: come together," Vigil said last Thursday during NCAI's meeting.

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.

Four Indian law petitions are pending at US Supreme Court. Alabama-Coushatta Tribe v Texas is about gaming in Texas. Buchwald affects tribal sovereign immunity in bankruptcy. California Trout is about Klamath River dams. Knighton is tribal court jurisdiction case. #NCAIAnnual19 pic.twitter.com/PCo6gNaRLI

— indianz.com (@indianz) October 24, 2019

• 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. Indian gaming disputes are rarely accepted by the Supreme Court but the National Congress of American Indians, the National Indian Gaming Association and the United South and Eastern Tribes Sovereignty Protection Fund submitted a brief on Friday, urging the justices to hear the case. The Ysleta del Sur Pueblo, also known as the Tigua Tribe, submitted a brief as well.

• 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. Dan Lewerenz from NARF noted that settlement talks have been underway, resulting in repeated delays in deadlines regarding the petition. That's a sign the case could be resolved without going to the Supreme Court, he said last week.

• 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, as well as the federal government.

• 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 complete so an answer to that request is expected once the justices consider the petition at a closed-door conference on November 8.

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

Supreme Court opens new term with little new Indian law activity (October 9, 2019)