Indianz.Com > News > Supreme Court takes up Indian law cases as tribes face new ‘unknown’
Supreme Court takes up Indian law cases as tribes face new ‘unknown’
Tuesday, October 19, 2021
Indianz.Com
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.
Denezpi v. United States
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.
Ysleta del Sur Pueblo v. Texas
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.’”
Images from Naskila Gaming 5th Anniversary 6/9/2021 🎰🎉5️⃣
Posted by Alabama Coushatta Tribe of Texas on Wednesday, June 9, 2021
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 October 2021 Term
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.
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