WASHINGTON, D.C. — Indian Country is gearing up for another round of big cases at the nation’s highest court.

The U.S. Supreme Court already heard one Indian law case this term and it was a major one. Arguments took place last November in Haaland v. Brackeen, a closely-watched dispute that will determine whether tribes can continue to protect their children through the Indian Child Welfare Act.

Two more significant matters have since been added to the docket. On November 4, the justices agreed to decide Department of the Interior v. Navajo Nation, another snigificant case that impacts the federal government’s trust and treaty obligation to provide water to tribal nations.

Then on January 14, the Supreme Court added Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin to its calendar. The outcome will determine whether tribal sovereignty has been abrogated by federal bankruptcy law, an issue that has never been decided by the justices.

Oral arguments in Navajo Nation and Lac du Flambeau Band have yet to be scheduled. But just like Brackeen, tribes and their advocates are paying close attention to the highest court in the land.

“With many high-profile cases on the Court’s docket, court-watchers anticipate that this will be another significant Supreme Court term,” the Native American Rights Fund, the largest Native-run legal organization, said in highlighting the three cases in its most recent update.

Despite being promised water through treaties, laws, executive orders and other federal actions, tribes along the Colorado River were infamously left out of a multi-state compact that was signed in 1922. To this day, the agreement governs how water is divided among seven Western states where some of the largest reservations are located.

More than a century later, the exclusion continues to haunt the Navajo Nation, whose reservation spans three of the states covered by the 1922 Colorado River Compact. The inequity was highlighted in an April 28, 2021, decision from the 9th Circuit Court of Appeals, which tied the federal government’s failure to live up to its trust and treaty obligations to the disproportionate impacts of the COVID-19 pandemic.

“Many homes on the reservation lack running water, making it difficult for tribal members to wash their hands regularly,” Judge Ronald M. Gould wrote for the court.

“The Nation has as a result been particularly affected by the current pandemic, with a death rate higher than that of many other parts of the country,” Gould continued.

The decision was a historic one for the Navajo Nation, opening the door for the tribe to hold the U.S. government accountable for bringing water to reservation residents in Arizona, New Mexico and Utah. The 9th Circuit couldn’t have been more clear, in fact.

“Federal Appellees have an irreversible and dramatically important trust duty requiring them to ensure adequate water for the health and safety of the Navajo Nation’s inhabitants in their permanent home reservation,” the decision said of the obligations owed to the tribe by the Department of the Interior, the Bureau of Reclamation and the Bureau of Indian Affairs.

The federal government, unsurprisingly, disagrees. The Biden administration wants the Supreme Court to overturn the 9th Circuit decision, arguing that the Navajo Nation has failed to “identify a specific, applicable, trust-creating statute or regulation” that requires the Department of the Interior, which is led by Secretary Deb Haaland, who is the first Native person in a presidential cabinet, to secure water for the reservation.

“The court of appeals’ decision conflicts with this Court’s precedents and with decisions of other courts of appeals,” U.S. government attorneys wrote in their petition. “And if allowed to stand, the decision below will undermine Congress’s role in ‘implement[ing] national policy respecting the Indian tribes,’ while imposing a regime of general judicial over- sight of the United States’ relationship with Indian tribes.”

With Arizona v. Navajo Nation, state governments and state entities are seeking to overturn the tribe’s victory at the 9th Circuit as well. Arizona, Nevada, California and Colorado link their opposition back to the 1922 Colorado River Compact — the one that Indian Country was excluded from — and they cite fears about other tribes taking advantage of the appellate court opinion.

“If the Ninth Circuit Opinion in this case stands, other tribes with unadjudicated water rights may seek to require the Secretary to manage nearby water systems under the presumption of a right,” the four states wrote in their petition.

“Should the Ninth Circuit Opinion not be reversed, its effect will be felt throughout the West, leaving those with adjudicated water rights in the Colorado River Basin subject to having the security of their water rights severely undermined by administrative adjudications conducted not in courts but within the offices of the U.S. Bureau of Reclamation and the Bureau of Indian Affairs,” the states continued.

With the alarms sounded, the Supreme Court granted the U.S. government petition in Department of the Interior v. Navajo Nation and the state government petition in Arizona v. Navajo Nation on November 4. Briefs on the merits were filed by the government petitioners in December, with non-Indian interests supporting these efforts to reverse the tribal victory.

We spent the day listening to boarding school survivors in Many Farms today. Thank you @SecDebHaaland for your leadership on this issue. @GovernorHobbs also came out to listen to our Navajo people. The road to healing tour will continue across the US. pic.twitter.com/IgPIzYIxAb

— Jasmine Blackwater-Nygren (@NygrenJasmine) January 23, 2023

The Navajo Nation has until February 1 to submit its brief after being granted an extension to do so. Following that, the government entities will be able to submit their final briefs to the Supreme Court, which could hear the case in late March or sometime in late April. Only 12 argument dates are available during those months, according to the calendar for the October 2022 term.

The Supreme Court hasn’t decided a significant tribal water rights case since Arizona v. California went in favor of Indian Country’s interests back in 2000. The case, not surprisingly, arises from the the management of the Colorado River.

The Supreme Court’s last major breach of trust decision was United States v. Jicarilla Apache Nation from 2011. The ruling went against tribal interests and again, not surprisingly, it figures prominently in the U.S. government’s efforts to overturn the Navajo Nation’s victory.

The U.S. government case can be found at Docket No. 22-51 while the state case is at No. 21-1484. The cases are consolidated under Docket No. 21-1484.

Navajo Nation v. Department of the Interior (Filed April 28, 2021 / Amended February 17, 2022)

Question Presented: Arizona v. Navajo Nation
Docket No. 21-1484: Arizona v. Navajo Nation
Docket No. 22-51: Department of the Interior v. Navajo Nation

Arizona v. Navajo Nation (sct.narf.org)
Department of the Interior v. Navajo Nation (sct.narf.org)

With Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin, the U.S. Supreme Court will decide a new yet highly-significant question. Does the U.S. Bankruptcy Code “unequivocally” abrogate tribal sovereign immunity, meaning can tribes be sued without their consent in federal bankruptcy court?

According to the 1st Circuit Court of Appeals, the answer is yes. Even though the Bankruptcy Code does not specifically mention tribal governments, the court said they fall under the definition of “domestic government” found in Section 101(27) of federal law.

“First, there is no real disagreement that a tribe is a government,” Judge Sandra L. Lynch wrote in the May 4, 2022, decision. “Tribes are not specifically excluded and fall within the plain meaning of the term governments.”

But the ruling was not unanimous. In a dissent, Chief Judge David J. Barron said Congress has neither “clearly” nor “unequivocally” abrogated tribal sovereign immunity in the section of the U.S. Bankruptcy Code at the heart of the case.

“Why, if Congress wanted to be crystal clear in abrogating tribal immunity through the Code, did it not use the clearest means of abrogating that immunity by including “Indian Tribe” — or its equivalent — in the list of expressly named governmental types that makes up the bulk of Section 101(27)?” Barron wrote in the dissent.

And other appellate courts have come to different conclusions, indicating that the answer to the question is not exactly crystal clear. The 6th Circuit Court of Appeals, in a case involving the Sault Ste. Marie Tribe of Chippewa Indians, ruled that tribal sovereignty has not been abrogated in federal bankruptcy law.

The 9th Circuit Court of Appeals, on the other hand, decided that Congress did abrogate tribal sovereignty in a case involving the Navajo Nation. The differences helped make Lac du Flambeau Band an attractive vehicle for the Supreme Court to settle the dispute once and for all.

“The exceptional importance of the question presented is evident. ‘Determining the limits on the sovereign immunity held by Indian tribes is a grave question,'” the Lac du Flambeau Band of Lake Superior Chippewa Indians wrote in its petition, quoting from a sovereignty case decided in 2018.

Citing another sovereignty decision from 2013, the tribe underscored the high stakes of the case: “As this Court has made clear in rebuffing attempts to abrogate tribal sovereign immunity, ‘courts will not lightly assume that Congress in fact intends to undermine Indian self-government.'”

The Native American Financial Services Association, whose members include the Lac du Flambeau Band, submitted a brief in support of the tribe’s petition. “The potential consequences are far-reaching for tribes and impede their ability engage in commercial activities that are critical to the exercise of their rights to self- government,” the group wrote.

Indian law professors are also backing the tribe. “Tribal sovereign immunity persists unless a Native Nation clearly waives it or Congress unequivocally says otherwise,” six scholars who signed onto a brief told the Supreme Court.

“Congress did not do so when it enacted the Code in 1978 or the current abrogation provision in 1994. And it has not done so since,” the brief continued, bringing the case back to the particular bankruptcy law in dispute. “Native Nations may therefore raise sovereign immunity as a defense to claims for damages under the Code.”

The dispute arose when Brian D. Coughlin, a non-Indian, voluntarily filed a Chapter 13 bankruptcy petition in his home state of Massachusetts, which is part of the 1st Circuit. He acknowledged that he owed nearly $1,600 to Lendgreen, a loan business owned by the Lac du Flambeau Band, whose reservation is located in Wisconsin.

Under the U.S. Bankruptcy Code, Coughlin believes he was entitled to a suspension of the tribe’s debt collection efforts. But when he kept receiving calls and emails from Lendgreen to pay the loan, he sought to enforce what is known as an “automatic stay” against the business.

A federal bankruptcy judge sided with the tribe, citing sovereign immunity. But the 1st Circuit reversed in the decision from May 2022 that will now be reviewed by the Supreme Court.

Since the case was just accepted last week, briefs on the merits have yet to be filed under Docket No. 22-227. The earliest the Supreme Court could hear the case would be late March or sometime in late April. Only 12 argument dates are available during those months, according to the calendar for the October 2022 term.

Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (May 6, 2022)
Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (Amended 6, 2022)

Question Presented: Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin
Docket No. 22-227

Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin (sct.narf.org)

As Indian Country awaits arguments in Navajo Nation and Lac du Flambeau Band, all eyes are on the Supreme Court for a decision in Haaland v. Brackeen. Tribal leaders who attended the hearing on November 9 fear a negative ruling would set back decades of progress in keeping Indian children connected to their communities.

“Before Congress passed the Indian Child Welfare Act 45 years ago, Native children were being removed from their parents, their extended families, their communities by state child welfare authorities and private adoption agencies at terribly high rates,” Principal Chief Chuck Hoskin, Jr. of the Cherokee Nation said on the steps of the high court after the three-plus hour argument.

But since ICWA became law in 1978, tribes have been able to exercise sovereignty over their most precious resource: their children. They could lose their ability to be involved in adoptions, custody and placement proceedings at the state level.

“Losing ICWA would mean the loss of the gold standard,” Chairman Tehassi Hill of the Oneida Nation said after the hearing. “Many states have recognized the benefit of ICWA and have codified its principles and practices into their own laws — but that is not always the case. Tribes would lose a right to be notified of cases involving children from our communities and tribes would not be a part of the process of ensuring the best outcomes.”

Protecting children isn’t a partisan issue, Chairman Charles Martin of the Morongo Band of Mission Indians said in front of the Supreme Court. Regardless of the way the justices rules, he promised that tribes will continue to fight for their sovereign rights.

“We will not go back to a time when our children were stolen and taken away from their homes,” Martin said. “We will not go back to a time when we lost our voice and our power to protect our families.”

The justices have until the end of their current term to issue a decision in Brackeen and they are known to take a long time with Indian law cases — in some cases, waiting until the final days of the session to release their opinions. Typically, the term concludes in the last week of June.

But in this era of uncertainty for Indian Country, the justices themselves don’t appear to have much control over their own opinions process. Last Thursday, the court announced that it was unable to discover how a decision in one of the most consequential cases in decades was prematurely leaked to the news media.

“The leak was no mere misguided attempt at protest,” a January 19 statement from the court reads. “It was a grave assault on the judicial process.”

Despite conducting interviews with dozens of court personnel during an investigation that took eight months, the court failed to figure out whether any of them committed such an attack. And a statement issued the following day asserted that none of the justices — or their spouses — were involved, even though none were required to go under oath or “sign sworn affidavits,” the court marshal said.

The investigation was released a day before the March for Life, an annual rally that draws opponents of abortion to Washington, D.C. Organizers said they were “overjoyed” by the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which reversed decades of precedent by denying women the constitutional right to obtain an abortion.