WASHINGTON, D.C. — The nation’s highest court is back in session amid COVID-19 and it’s shaping up to be a busy one for tribes and their advocates.

In an order list on Monday, the U.S. Supreme Court added only two new cases to the docket for its October 2021 term. The action was notable in and of of itself, since both cases happen to come from Indian Country.

But the granting of the petitions in Denezpi v. United States and Ysleta del Sur Pueblo v. Texas presents new challenges for the tribal legal community. That’s because there’s a new member of the high court, one who doesn’t have much of a record when it comes to Indian Country’s interests.

“We have one unknown,” John Echohawk, the longtime executive director of the Native American Rights Fund, told tribal leaders last week. “There’s a new justice on the court, Amy Coney Barrett.”

“We’re really not sure how she’s going to be ruling on our federal Indian law issues,” added Echohawk, who is a citizen of the Pawnee Nation.

“So that’s one of the things that we’re watching,” Echohawk said on the final day of the 78th annual convention of the National Congress of American Indians last Thursday.

Barrett was nominated to the Supreme Court by Republican former president Donald Trump, whose executive policy actions frequently went against Indian Country. His pick, as part of the judicial brach of the U.S. government, will now be ruling on cases impacting two major issues: tribal sovereignty and tribal gaming.

Merle Denezpi, a citizen of the Navajo Nation, is raising an issue that has come before the Supreme Court at least once in recent years. He disputes whether he can be prosecuted by the United States government and by a tribal government for the same crime. In this case, he was pursued by both the Ute Mountain Ute Tribe and by the U.S. for a crime involving sexual assault.

Normally, the double jeopardy clause of the U.S. Constitution protects someone from being prosecuted twice for the same crime. But the prohibition does not usually apply in Indian Country because tribes are separate sovereigns, the 10th Circuit Court of Appeals noted in October 2020.

“All parties agree that the Ute Mountain Ute Tribe has the inherent power to prosecute criminal offenses committed by an Indian on its sovereign lands and that the source of this power is the Ute Mountain Ute Tribe’s ‘pre-existing sovereignty,’” Judge Stephanie Seymour wrote for the court.

Denezpi accepted a guilty plea in Ute Mountain Ute court for a charge of assault on the tribe’s reservation in southern Colorado. However, he contends that the tribe’s judicial forum, which is known as a Court of Indian Offenses, commonly known as a CFR Court, is “derived, at least in part, from federal power rather than from tribal sovereignty,” Seymour observed.

The 10th Circuit rejected Denezpi’s argument. In the unanimous ruling, the court pointed out that CFR Courts “function as tribal courts” and thus derive their power from tribal sovereignty.

“Denezpi misses the point,” Seymour wrote. “Because it has never been withdrawn, the ‘‘ultimate source’ of the power undergirding’ the CFR prosecution of Mr. Denezpi is the Ute Mountain Ute Tribe’s inherent sovereignty.”

The Supreme Court, though, has never ruled exactly on whether CFR courts derive power from tribal sovereignty, Denezpi wrote in a petition submitted on March 26. The Department of Justice, having come under the control of Democratic President Joe Biden, waived its right to file a response, a step usually taken when the government believes a particular case has little chance of being granted.

The high court apparently believes otherwise, according to activity reflected in the docket sheet No. 20-7622. After taking an initial look at Denezpi’s petition in May, the justices asked the Biden administration to file a response. Government attorneys finally submitted one on July 19, after requesting and receiving two extensions.

And after scheduling the petition in Denezpi v. United States for consideration during three closed-door conferences, the justices — or at least four of them — confirmed the novelty of the case. They granted Denezpi in the order list on Monday though they didn’t explain why they did so, as is their practice.

The tribal casino industry has suffered major losses due to COVID-19. According to the National Indian Gaming Commission, the federal agency that oversees the industry, revenues fell 19.5 percent following the onset of the pandemic in 2020, taking Indian Country back to a time not seen in decades, a decline that affects tribal, local and state governments thanks to intertwined relationships seem across the nation.

But some states would rather not have Indian gaming in the first place, regardless of a public health crisis that has impacted economies nationwide. That’s where the Ysleta del Sur Pueblo, also known as the Tigua Tribe, finds itself. The state of Texas is once again trying to stop the tribe from offering bingo at the Speaking Rock Entertainment Center on its reservation near El Paso, the largest city in the region.

“The economic consequences of discontinuing the current bingo operations on the Pueblo are severe, and will be felt by tribal members, employees, and the surrounding community,” the tribe wrote in a petition submitted to the Supreme Court last October.

“Hundreds of jobs at the tribe’s gaming facility will be lost — impacting not only the tribe but the entire El Paso region,” the petition continued. “In shutting down the tribe’s bingo operations, the district court recognized that ‘the harm that the tribe faces is truly irreparable.’”

The Alabama-Coushatta Tribe finds itself in a similar situation. Although fortunate to have reopened Naskila Gaming following a COVID-19 shutdown that affected the entire industry last year, the state of Texas is pursuing a separate legal action to get the facility near Houston closed for good.

“The bingo enterprises here also provide tribal members and residents in surrounding communities with well-paying jobs with good benefits, in areas of Texas with historically high poverty rates and unemployment,” the tribe said in a friend of the court brief that also was signed by the National Congress of American Indians, the National Indian Gaming Association and the USET Sovereignty Protection Fund. Together, the organizations represent nearly every tribe in the U.S.

Despite the united front from Indian Country, the high court did not appear immediately swayed by the petition in Ysleta del Sur Pueblo v. Texas. Neither did the state of Texas, whose attorneys waived their right to respond before being compelled by the justices after an initial review of the case. So after taking a second look earlier this year, they asked yet another power — the United States — for some guidance.

The Department of Justice, now under President Biden’s power, finally responded on August 25. In a brief, government attorneys called for a ruling from the 5th Circuit Court of Appeals to be overturned because it infringes on the Tigua Tribe’s sovereign right to engage in gaming just like almost every other Indian nation. Such inherent power is recognized by the Indian Gaming Regulatory Act (IGRA) of 1988.

“The court’s contrary decision implicates important tribal sovereignty interests and undermines IGRA’s key objectives,” government attorneys wrote of the 5th Circuit ruling from April 2020.

Even then, the Supreme Court still didn’t seem convinced, judging by the entries on docket sheet No. 20-493. It took three more closed-door conferences, bringing the total number of conferences to five since November 2020, before the petition was granted on Monday.

Still, the advocacy the federal government may have helped. The Tigua Tribe has repeatedly petitioned the Supreme Court to consider its gaming plight as far back as 2001, after the state of Texas first shut down Speaking Rock. The Alabama-Coushatta Tribe also tried to get the long-standing dispute resolved the justices, only to rebuffed in early 2020. The U.S. government was not at the table for this prior efforts.

LISTEN: The National Congress of American Indians hears an update from the Tribal Supreme Court Project on October 14, 2021. @NCAI1944 #NCAIAnnual21 https://t.co/FU6PPnuJ5O

— indianz.com (@indianz) October 20, 2021

The U.S. Supreme Court began its October 2021 term on October 4 by returning to in-person arguments for the first time since the onset of COVID-19 in the spring of 2020. But Justice Brett Kavanaugh, who joined the court during the Trump era in October 2018, had to sit out the first week of arguments after testing positive for the coronavirus.

Despite the justices working together once again however, the nation’s highest court remains closed to the public. Livestreams are still being provided and audio recordings of hearings are also made available.

The court has not yet scheduled hearings in Denezpi v. United States and Ysleta del Sur Pueblo v. Texas. With cases currently booked through December, the earliest either one could appear on the calendar would be January 2022.

The Supreme Court’s most recent COVID-era sessions, the first starting in October 2019 and the second in October 2020, have been eventful for Indian Country even though only three cases were heard. Two of them resulted in significant victories for tribal interests, most notably the decision affirming the treaty-promised reservation of the Muscogee Nation in Oklahoma.

Chuck Hoskin: Protecting tribal sovereignty in Oklahoma (October 12, 2021)
Supreme Court returns to in-person arguments as justice tests positive for COVID-19 (October 1, 2021)
Indian Country Today: Alaska Native corporations finally receive COVID-19 funds (September 27, 2021)
Muscogee Nation: Tribal sovereignty is not a threat to Oklahoma (August 27, 2021)
Gaylord News: Funding bill passes without additional support for tribal justice systems (August 2, 2021)
Chuck Hoskin: Cherokee Nation celebrates sovereignty milestone (July 12, 2021)
Muscogee Nation proclaims Sovereignty Day on anniversary of historic Supreme Court ruling (July 9, 2021)
Nation’s highest court sides with Alaska Native corporations in COVID-19 dispute (June 25, 2021)
‘I wanted to cry’: Tribes welcome ruling in long-running health care dispute (June 21, 2021)
SCOTUSBlog: Supreme Court decision marks a first for tribal sovereignty (June 11, 2021)
Montana Free Press: Supreme Court supports tribal sovereignty in law enforcement case (June 11, 2021)
Cronkite News: Supreme Court finally ‘got it right’ on tribal sovereignty (June 4, 2021)
SCOTUSBlog: Supreme Court supports tribal sovereignty over non-Indians (June 3, 2021)
Supreme Court backs tribal sovereignty in law enforcement case (June 1, 2021)
Chuck Hoskin: Cherokee Nation seeks to strengthen sovereignty (May 17, 2021)
Indian Country nearly locked out of U.S. Supreme Court hearing (April 19, 2021)