Principal Chief James Floyd of the Muscogee (Creek) Nation addresses tribal citizens at the 4th annual New Mexico Quarterly Outreach Gathering in Santa Fe on May 11, 2019. The status of the tribe's reservation in Oklahoma is at issue in the only outstanding Indian law cases on the U.S. Supreme Court's docket. Photo: MCN Public Relations

Supreme Court winds down surprising term with two wins for tribal treaties

During his two years on the nation's highest court, Justice Neil Gorsuch has emerged as a reliable ally for tribal interests despite being picked by a president whose policies and actions have been disastrous for Indian Country.

In two cases this term, Gorsuch has provided the crucial fifth vote in favor of treaty rights. Without his support, both the Crow Tribe and the Yakama Nation would have seen negative rulings from the U.S. Supreme Court, where Indian law disputes are often decided by a slim majority among the nine justices.

Instead, tribal interests emerged victorious in Herrera v. Wyoming, decided on Monday. That's because Gorsuch joined the four more liberal members of the court in siding with Clayvin Herrera, a Crow citizen, and affirming his right to offer a treaty defense to hunting infractions in the state of Wyoming.

Gorsuch did not write the majority opinion in Herrera or deliver a concurrence but the decision bears the fruits of his efforts to ensure tribal parties get a fair shake when their rights are called into question. During oral arguments on January 8, he took aim at a 123-year-old case known as Ward v. Race Horse and called for its undoing.

"What do you say to the suggestion that we just be done with Race Horse and overrule it?" Gorsuch asked of a government attorney.

"The government would be fine with that. We would invite the court to overrule Race Horse," responded Frederick Liu, an assistant to the Solicitor General at the Department of Justice.

With its 5-4 opinion on Monday, the Supreme Court did just that. The action was significant because it ensures Race Horse, despite its old age, can no longer be used to erode tribal rights.

"To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood," Justice Sonia Sotomayor, who was nominated to the bench by Democratic former president Barack Obama, wrote for the court.

A similar story unfolds with Washington State Department of Licensing v. Cougar Den, which was decided by a 5-4 vote in March. Again, Gorsuch joined the four more liberal members of the court in holding that the Cougar Den, a business owned by a Yakama citizen, doesn't have to pay a fuel tax to the state of Washington due to protections in his tribe's treaty.

This time, Gorsuch was motivated enough to write a concurrence. The reason for doing so was clear: over 11 pages, he repeatedly rebuked the state for trying to diminish a treaty signed in 1855.

"Really, this case just tells an old and familiar story," Gorsuch observed. "The state of Washington includes millions of acres that the Yakamas ceded to the United States under significant pressure. In return, the government supplied a handful of modest promises."

"The state is now dissatisfied with the consequences of one of those promises. It is a new day, and now it wants more," Gorsuch continued. "But today and to its credit, the court holds the parties to the terms of their deal. It is the least we can do."

But that wasn't the first time Gorsuch sought to "set things straight" when it comes to Indian issues. In Upper Skagit Indian Tribe v. Lundgren, decided a year ago, he led the Supreme Court in clarifying that a decades-old decision, commonly known as Yakima, cannot be used against tribes to abrogate their sovereign immunity

"That is work enough for the day," Gorsuch concluded in what was a 7-2 ruling that gave the Upper Skagit Indian Tribe a procedural win in a case from Washington state.

Despite helping Indian Country in the treaty rights cases this term, Gorsuch has not been able to sway the more conservative members of the Supreme Court. Four justices who were nominated by Republican presidents went against tribal interests in Herrera and Cougar Den.

Going back further, a solid block of at least four conservative justices has consistently ruled against tribes in a slew of cases. Advocates trace the poor outcomes to the arrival of John G. Roberts Jr., who was a Republican pick, as chief of the highest court in the land.

"Since John Roberts has taken over, we really have struggled," John EchoHawk, a citizen of the Pawnee Nation and the long-serving executive director of the Native American Rights Fund, told tribal leaders as the Supreme Court opened its October 2018 term.

"We’re not doing very well," EchoHawk said, citing a dismal record that goes back to 2005.

With President Donald Trump looking on, Supreme Court Justice Anthony M. Kennedy, swears-in Neil M. Gorsuch to be the Supreme Court's 113th Justice during a ceremony in the Rose Garden of the White House in Washington, D.C. , on April 10, 2017. Justice Gorsuch’s wife, Louise, holds a family Bible. Photo: Shealah Craighead / White House

Justice Brett Kavanaugh, who also was chosen by President Trump, has contributed to Indian Country's losses barely seven months into his tenure. He joined the court last October, after a bruising confirmation fight that saw Alaska Natives oppose his nomination out of fear he would erode tribal rights.

Of Kavanaugh, who served on a key federal appeals court for a decade, EchoHawk said his record was "very slim on Indian law issues."

"And what was there was mixed," EchoHawk told the National Congress of American Indians as tribal leaders met in the same city where they established the organization in 1944 to address threats to the rights of Native peoples.

Kavanaugh's addition to the conservative wing of the high court spells trouble as tribes and their advocates await a decision in the last Indian law case on the docket. Only this time around, Gorsuch won't be able to come to the rescue in Carpenter v. Murphy because he has recused himself.

Gorsuch hasn't stated publicly his reasons for stepping away from the highly-charged dispute, which centers on the continued existence of the reservation of the Muscogee (Creek) Nation. But it's possible he came into contact with the case when he was serving on the 10th Circuit Court of Appeals, where it originated.

If the Supreme Court affirms the reservation boundaries, a Creek citizen who was convicted of murder will be set free from death row in Oklahoma because the charges will have to be prosecuted in the federal, instead of the state, system.

With Gorsuch sidelined, the case will be decided by eight justices, four of whom sided with tribal interests in Herrera and Cougar Den and four who didn't. Already there are signs that they are having trouble with it.

After oral arguments last November, the Supreme Court took the unusual step of ordering the parties to submit additional briefs. That almost never happens in an Indian law case.

"That really signals, at least at that stage, that the court was struggling to get their majority view on this case," Joel Williams, a citizen of the Cherokee Nation who serves as a staff attorney at NARF, told leaders of the United South and Eastern Tribes during their recent meeting in Washington, D.C.

There is some silver lining, however. If the eight justices are unable to reach a majority view in Murphy, the 10th Circuit's ruling in favor of the Creek Reservation, which was established by treaty in 1866, will stand by a 4-4 tie.

Such an outcome is more likely -- it's happened not just once, but twice in an Indian law case in the last three years.

Experts, however, don't expect an answer soon. They don't think Murphy will come out until the very end of the current term, typically at the end of June.

In Dollar General Corporation v. Mississippi Band of Choctaw Indians, one of the deadlocked cases, the justices waited until almost the end of the term to deliver the one-page ruling, which affirmed a lower court ruling in support of tribal jurisdiction over non-Indians. The 4-4 tie in Washington v. U.S. also upheld a decision in favor of tribal treaty rights.

But for now, observers are reflecting favorably as the current term winds down. One of them is Gavin Clarkson, a citizen of the Choctaw Nation who is seeking the Republican nomination for an open U.S. Senate seat in New Mexico.

"As I said in March, Indian Country should again thank President Trump for appointing Justice Gorsuch, who clearly understands that tribal sovereignty and private property rights are two sides of the same conservative coin," Clarkson told Indianz.Com after Herrera came out.

Clarkson, who spent six months as a Trump appointee in 2017, attended the Herrera hearing and walked away impressed with Gorsuch's understandings of treaty rights and other Indian law principles. Based on some of the questions posted during arguments, he felt Kavanaugh could have been swayed to the tribal side but that didn't turn out to be the case with Monday's decision.

Chief Justice John G. Roberts, Jr., administers the Constitutional Oath to Judge Brett M. Kavanaugh in the Justices’ Conference Room, Supreme Court Building. Mrs. Ashley Kavanaugh holds the Bible. Photo: Fred Schilling, Collection of the Supreme Court of the United States

After Cougar Den, Mary Kathryn Nagle, an attorney and Cherokee citizen, also voiced optimism about the court's direction. She pointed to Gorsuch's willingness to take a critical look at precedents that have gone against Indian Country's interests, and his ability to get other justices on board and overturn

"I think we are starting to see a turn," Nagle said at the Safety for Our Sisters symposium, which was held at the National Museum of the American Indian in March.

Tribal jurisdiction over non-Indians happens to be one of those areas that could benefit from Gorsuch's influence. Had he been present for Dollar General, for example, the court might have set the record straight in a more decisive manner.

"There's some glimmering hope," said Nagle, who has worked on Supreme Court cases affecting protections for Native women.

Supreme Court Decision: Herrera v. Wyoming
Syllabus | Opinion [Sotomayor] | Dissent [Alito]

Supreme Court Documents: Herrera v. Wyoming
Docket Sheet: No. 17-532 | Oral Argument Transcript | Questions Presented

Indianz.Com on SoundCloud: U.S. Supreme Court - Herrera v. Wyoming - January 8, 2019

Supreme Court Decision: Washington State Department of Licensing v. Cougar Den
Syllabus | Judgment [Breyer] | Concurrence [Gorsuch] | Dissent [Roberts] | Dissent [Kavanaugh]

Supreme Court Documents: Washington State Department of Licensing v. Cougar Den
Docket Sheet: No. 16-1498 | Questions Presented | Oral Argument Transcript

Indianz.Com on SoundCloud: U.S. Supreme Court - Washington State Dept. of Licensing v. Cougar Den, Inc. - October 30, 2018

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