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Supreme Court rejects petitions in four more Indian law cases

Monday, October 5, 2015

The Jim Thorpe Memorial in Jim Thorpe, Pennsylvania. Photo by Doug Kerr / Flickr

Hopes for the reburial of the legendary athlete Jim Thorpe have been dashed by the nation's highest court.

Without comment, the U.S. Supreme Court denied a petition in Sac and Fox Nation v. Borough of Jim Thorpe in an order list issued this morning. The move by the justices means the remains of Thorpe will stay in Pennsylvania against the wishes of his surviving sons.

Thorpe died in 1953 and was about to be buried in the Sac and Fox Nation cemetery in Oklahoma when his widow interrupted the ceremony and took his body with the help of state troopers. She eventually had his remains interred in a newly created municipality in Pennsylvania in 1957.

The tribe and Thorpe's sons sued the Borough of Jim Thorpe in hopes of reclaiming the remains under the provisions of the Native American Graves Protection and Repatriation Act. After winning a ruling from a federal judge, the 3rd Circuit Court of Appeals held that the landmark law, enacted by Congress in 1990, did not apply to the Olympic gold medalist.

Indianz.Com SoundCloud: 3rd Circuit Court of Appeals Oral Arguments in John Thorpe v. Borough of Jim Thorpe

"Literal application would even reach situations where the remains of a Native American were disposed of in a manner consistent with the deceased’s wishes as appropriately memorialized in a testamentary instrument or communicated to his or her family," Judge Theodore McKee wrote in the unanimous decision from October 2014. "There is therefore no limitation that would preserve the final wishes of a given Native American or exempt determination of his or her final resting place from the procedural requirements of NAGPRA."

Current and former members of Congress disputed that interpretation. The Supreme Court accepted a brief submitted by Sen. Ben Nighthorse Campbell (R-Colorado), a member of the Northern Cheyenne Tribe, and Rep. Tom Cole (R-Oklahoma), a member of the Chickasaw Nation, but the justices decided not to resolve the matter anyway.

The justices also accepted a brief from the National Congress of American Indians in support of reburial, according to the order list.

The Supreme Court denied petitions in three other cases as well. In all of those instances, though, the move helps tribal interests.

Princesses from the Kialegee Tribal Town in Oklahoma. Photo from Facebook

The Kialegee Tribal Town urged the justices not to accept Oklahoma v. Hobia. The case arose when the tribe pursued a casino on an Indian allotment near Tulsa.

Oklahoma Attorney General Scott Pruitt (R) sued individual tribal leaders, accusing them of violating the Indian Gaming Regulatory Act. But the 10th Circuit Court of Appeals last December held that they are protected by sovereign immunity.

That decision will now stand since Pruitt's petition was rejected. The tribe has noted that it is no longer pursuing the casino at the allotment in Broken Arrow although plans for a new site are in the works.

The denial of the petition also solidifies the Supreme Court's decision in Michigan v. Bay Mills Indian Community. States are being told firmly that they cannot sue tribes, or tribal leaders, for activities that occur outside of the scope of IGRA.

Veterans present the colors at the Ho-Chunk Nation's general council meeting in Madison, Wisconsin, on September 19, 2015. Photo from Facebook

Another petition arose out of a tribal-state dispute. In Wisconsin v. Ho-Chunk Nation, the state of Wisconsin was trying to prevent the Ho-Chunk Nation from offering electronic gaming machines at a facility in Madison.

The 7th Circuit Court of Appeals in April determined that the machines are Class II devices that the state can't control under the Class III compact. The denial of the petition submitted by Wisconsin Attorney General Brad D. Schimel means that ruling will stand.

Although sovereign immunity wasn't at issue, the case faced tough odds at the high court anyway. Prior to the Bay Mills decision from May 2014, the last case that directly implicated the Indian Gaming Regulatory Act was Chickasaw Nation v. US in 2001.

The last petition rejected affected the Santa Ynez Band of Chumash Indians in California. At issue was a somewhat obscure dispute in which Chairman Vincent Armenta was accused of making false statements in a bankruptcy proceeding.

A view of the U.S. Supreme Court. Photo by Indianz.Com

The 9th Circuit Court of Appeals refused to sanction Armenta for the alleged conduct. Vincent Torres, who used to do construction work for the tribe until all of his contracts were cancelled, asked the justices to accept the petition in Torres v. Santa Ynez Band of Chumash Indians , but it was declined without comment in the order list.

Even though the Supreme Court won't be hearing the four cases, the justices already have a busy season ahead when it comes to Indian Country. So far, three cases affecting tribal interests are on the docket.

The first case accepted is Dollar General Corporation v. Mississippi Band of Choctaw Indians. At issue is whether Dollar General, a publicly-traded company with $17.5 billion in revenues can avoid the authority of the Mississippi Band of Choctaw Indians. The tribe had won at the 5th Circuit Court of Appeals.

The second case on the docket is Menominee Indian Tribe of Wisconsin v. US. The decision will determine how far back the Indian Health Service must go to pay tribes for contract support costs in self-determination contracts.

The Menominee Tribal Clinic in Keshena, Wisconsin, operates with funds from a self-determination contract. Photo from MTC

In the case, a reversal by the high court would benefit the Menominee Nation of Wisconsin. The Obama administration also supports review of a D.C. Circuit Court of Appeals decision that both the tribe and the Department of Justice believe conflicts with other rulings. It marks the third time in a decade that the Supreme Court will hear a contract support costs case.

Just last Thursday, the court accepted its third Indian law case. The outcome in Nebraska v. Parker will determine whether the boundaries of the reservation of the Omaha Tribe of Nebraska have been diminished.

Last December, the 8th Circuit Court of Appeals ruled that the village of Pender remains within reservation boundaries even though Congress opened a part of the tribe's land base to non-Indian settlers in 1882. The decision means non-Indian liquor establishments must comply with the tribe's liquor laws and taxes.

A reversal by the Supreme Court would mean the tribe loses on two major fronts -- the size of its reservation and its ability to exercise jurisdiction over businesses there. Chairman Vernon Miller said he was disappointed to learn that the case will be heard during the October 2015 term.

A view of the Omaha Reservation in Nebraska. Photo from Omaha Tribe

"I've noted before this is an attack on all tribal sovereignty using tax dollars; not only of the people of Nebraska but, ironically, of our tribal members as well," Miller said in a press release last Thursday. "Nevertheless, we are confident that the U.S. Supreme Court -- like the courts below -- will find that our reservation has never been diminished. We will continue to go against the current as usual.”

Oral arguments for the cases haven't been announced for what is shaping up to be a busy season for Indian Country. The October 2015 term marks first time since the October 2010 term that more than one Indian law case will be heard by the Supreme Court, where tribes tend not to do so well.

For that reason, tribes and their advocates have been working hard to keep cases away from the court. The Tribal Supreme Court Project, a joint effort of the National Congress of American Indians and the Native American Rights Fund, appears to have been working, at least until now.

"We were winning at the Supreme Court more than we were losing at the Supreme Court," attorney Richard Guest of NARF said of the first few years of the project.

Since John G. Roberts took on the position of chief justice of the court in 2005, tribal interests have won just two cases and have lost nine, Guest told tribal leaders at NCAI's winter conference in Washington, D.C., in February. Up until 2012, tribes hadn't even won a single case, he added.

3rd Circuit Decision:
John Thorpe v. Borough of Jim Thorpe (October 23, 2014)

7th Circuit Decision:
Wisconsin v. Ho-Chunk Nation (April 29, 2015)

8th Circuit Decision:
Smith v. Parker (December 19, 2014)

DC Circuit Decision:
Menominee Indian Tribe of Wisconsin v. USA (September 2, 2014)

Federal Circuit Decision:
Arctic Slope Native Association v. Sebelius (November 9, 2012)