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Supreme Court winds down unusual term with tribal sovereignty case on docket

Tuesday, June 23, 2020

By Acee Agoyo

As Indian Country continues to wait for a decision in a closely-watched sovereignty case, the nation's highest court is turning away long-running challenges to tribal treaty and land rights.

In an order list on Monday, the U.S. Supreme Court rebuffed an attempt to undermine tribal water rights in Oregon. And in a separate action, the justices prevented a tribe's lands from possibly being taken out of trust in Oklahoma.

"Speaking as a tribal member, this is a monumental day for the United Keetoowah Band of Cherokee Indians in Oklahoma," Chief Joe Bunch said in a statement after learning the petition in the case was denied.

"We had our highest courts in the land rule that we have the right to land in trust," Bunch said of a dispute that has lasted more than 15 years.

Please read below for official statements from Chief Joe Bunch and Assistant Chief Jamie Thompson regarding today's...
Posted by United Keetoowah Band of Cherokee Indians in Oklahoma on Monday, June 22, 2020

Over in Oregon, the leader of the Klamath Tribes also welcomed the news out of Washington, D.C. The justices on Monday declined a petition in which non-Indian irrigators attempted to disturb senior water rights that were reserved by a treaty signed in 1864.

“We’re pleased to have this case put to rest and the seniority of the Klamath Tribes’ water rights recognized and reinforced," Chairman Don Gentry said in a news release. "The courts in this case were correct about our treaty rights, which include protecting and sustaining the endangered C’wam and Koptu in Klamath Lake."

"We look forward to healing and restoring our tribal fisheries," Gentry said of the resources that have provided for his people for thousands of years.

TODAY,in a tremendous victory for Klamath Tribes, the US Supreme Court declined to hear Baley v. US, cementing the Tribes' top water rights in the region! https://t.co/OvQtRjgtFP
— NARF (@NDNrights) June 22, 2020

With the denial of Baley v. United States and Cherokee Nation v. Bernhardt, the Supreme Court has ensured that Indian Country only has eyes on one matter for now. But it's a big one, and it touches on issues raised in the petitions that were denied -- treaties and land rights.

At stake in McGirt v. Oklahoma are millions of acres promised by treaty to the Muscogee (Creek) Nation. Due to COVID-19, the justices heard arguments via teleconference on May 11, with the Trump administration and the state teaming up in an attempt to deprive the tribe of sovereign protections for its lands.

With just a few more days left in the October 2019 term, the court is definitely keeping tribes and their advocates in suspense. A decision is expected by the end of the month, but some experts think the Supreme Court will end up working into July in order to clear the docket of the cases still unresolved.

With 14 decisions including McGirt to go, it sure looks like there is a lot more to do. Besides issuing an order list in which no new cases were accepted, the justices on Monday only released one written opinion from a case hear in the current term.

Similar drips took place last week. On Monday, three opinions were published on the court's website. On Thursday, just one came out.

Baley v. United States

Despite having their government-to-government relationship terminated, then later restored, by the federal government, the Klamath Tribes have always retained treaty-reserved water rights. The courts have recognized those rights as senior, meaning of the highest precedence, and following 40 years of efforts, the state of Oregon did the same.

But as the issue was being adjudicated at the local level, non-Indian farmers and irrigators sought payment from the government for allegedly depriving them of water -- including water already reserved for Klamath and other tribes in southern Oregon and northern California. Litigation began in 2001 and concluded with a Federal Circuit Court of Appeals decision in November 2019, once again recognizing tribal precedence.

In explaining why those rights come first, a unanimous three-judge panel wrote that the "Klamath Tribes have an implied right to water to the extent necessary for them to accomplish hunting, fishing, and gathering on the former reservation, a primary purpose of the Klamath reservation."

The U.S. Supreme Court in Washington, D.C., remains closed to visitors due to COVID-19. Photo by Indianz.Com (CC BY-NC-SA 4.0)

With the latest action on Monday, the potentially devastating distraction is off the table. The Native American Rights Fund represented the tribe as a friend of the court in the case.

"The law is very clear about the Klamath Tribes’ senior water rights in the region," John Echohawk, a citizen of the Pawnee Nation who serves as NARF's executive director, said on Monday. "The courts have been very clear as well. We are glad the courts reached the right outcome in this case and that tribal rights and sovereignty have been affirmed.”

Cherokee Nation v. Bernhardt

The United Keetoowah Band of Cherokee Indians will be able to keep 76 acres in trust in Tahlequah, Oklahoma, as a result of the denial of the petition in Cherokee Nation v. Bernhardt on Monday. Plans call for a tribal and cultural facility at the site.

More importantly, the tribe will be able to acquire additional homelands in the eastern part of the state, after long having been denied the ability to do so due to an overly restrictive interpretation of the law.

"Now we’re officially equal to any other federally recognized tribe and we’re looking forward to a future where we can exercise our rights like every other federally recognized tribe that has land in trust,” Assistant Chief Jamie Thompson said on Monday.

United Keetoowah Band of Cherokee Indians Chief Joe Bunch, seated left, and Acting Regional Director of the Eastern Oklahoma Region Bureau of Indian Affairs Jessie Durham, seated right, sign the tribe’s official deed for 76 acres of land in trust. The two were surrounded by current and former UKB officials, councilors and chiefs as the signing took place. Photo by Brittney Bennett / Giduwa Cherokee News

In September 2019, the 10th Circuit Court of Appeals confirmed that the tribe restore its homelands through the fee-to-trust process. The unanimous decision now stands with the high court's action.

The Cherokee Nation, whose lands are also located in the same region of Oklahoma, was fighting the United Keetoowah Band's efforts. The tribe declined to comment when asked about the case.

The Cherokee Nation had argued that federal law required the Bureau of Indian Affairs to secure its consent before acquiring trust lands for any other tribe in a 14-county area of the state. The 10th Circuit ruled that the BIA must consult with the Cherokees, but isn't required to secure their approval.

Indianz.Com Video: Indianz.Com Live | McGirt v Oklahoma | U.S. Supreme Court

McGirt v. Oklahoma

With no other Indian law cases on the docket, that leaves McGirt v. Oklahoma. While the matter was only argued last month, the underlying dispute has in fact been pending at the Supreme Court for more than two years.

Back in May 2018, the justices agreed to hear case then known as Murphy v. Royal. At issue was whether the state of Oklahoma can exercise criminal jurisdiction over a reservation promised to the Muscogee (Creek) Nation by treaty.

But after forcing Indian Country to wait until the very last day of the October 2018 term for an answer, the justices refused to issue a decision. Speculation centered on the fact that only eight justices heard the case, as Neil Gorsuch was recused for reasons that have not been publicly explained but which are likely connected to the fact that Murphy came from the 10th Circuit Court of Appeals, where he previously served as a judge.

Enter McGirt. The issue is the same -- whether the Creek Reservation is Indian Country. The arguments are the same too -- the Trump administration and the state of Oklahoma argue that the reservation has been diminished to the point that state sovereignty takes over, while the Muscogee (Creek) Nation and the Indian defendants -- backed by a slew of tribal interests -- argue the opposite.

Indianz.Com Audio: U.S. Supreme Court - McGirt v. Oklahoma - May 11, 2020

What's changed is the presence of Justice Gorsuch, whose record in Indian law is unprecedented in Supreme Court history. Tribal advocates believe his extensive background, which includes resolving reservation status issues, will help convince his colleagues to arrive at a decision in McGirt.

Gorsuch displayed some of his Indian Country prowess during the May 11 hearing, which ran 30 minutes longer than the allotted hour. He reminded Oklahoma's attorney that history is filled with evidence which "shows nothing more than that states have violated Native American rights ... on tribal lands against against tribal members in the past."

Yet Gorsuch also knows that the past isn't always that far away. As a member of the 10th Circuit, he stopped the state of Utah from violating the rights of the Ute Tribe and its members in a blockbuster decision less than four years ago.

What's more, his court removed the judge assigned to the case after it became clear that the 10th Circuit's precedent were being ignored. The tribe later thanked Gorsuch for protecting its sovereignty from a "racist" judge.

Whether Gorsuch can sway his eight colleagues into finally resolving the matter should be known soon enough. The Supreme Court will once again announce opinions on Thursday as it winds down a term with its building closed due to the coronavirus pandemic.

SUPREME COURT WATCH

Justices released 1 opinion on 6/22. It wasn't the case Indian Country is watching.

At stake in #McGirt is sovereign status of millions of acres in eastern #Oklahoma, on lands promised to Muscogee (Creek) Nation by treaty.

Indian Country keeps waiting... pic.twitter.com/R4llEOoVAu
— indianz.com (@indianz) June 22, 2020