Tribes enter a new era with conservative lean at Supreme Court

Monday, April 10, 2017

The U.S. Supreme Court is back to nine members with the arrival of a new justice in the nation's capital.

After a bitter and partisan fight that ended with a 55 to 45 confirmation vote on Friday, Neil Gorsuch was sworn in as the 101st associate justice on Monday morning. His presence means five of the nine seats on the closely-divided court are held by judges who were nominated by Republican presidents.

But while tribes and their advocates have found little in common so far with President Donald Trump, the nomination of Gorsuch was different. Based on his 10-year record on the 10th Circuit Court of Appeals, they believe he brings an unprecedented level of understanding of Indian law and policy that ensure they will get a fair shot in any upcoming cases.

"As far as anyone Trump could have nominated," John EchoHawk, the executive director of the Native American Rights Fund, said in February, "I don't think he could have come up with anybody much better than Judge Gorsuch."

For tribes, whose win record before the nation's highest court in the last couple of decades has been terrible, every favorable vote counts. Between 2006 and 2016, they lost nine out of 11 cases, EchoHawk said at a meeting of the National Congress of American Indians in Washington, D.C., with conservative justices often going against their interests.

Ironically, the death of Antonin Scalia in February 2016 shifted Indian Country's fortunes a bit. Tribes won three out of four cases that were on the docket at the time.

With the exception of one case, all were decided by unanimous votes. The justices deadlocked 4-4 on the final case, a move that benefited tribal interests.

Tribes are hoping that record continues with Gorsuch on board. A comprehensive review by EchoHawk's organization painted him as a far better judge for Indian Country than Scalia ever was.

With the political drama behind him, Gorsuch will now be putting his understanding of Indian law to the test. Here's a look at the Supreme Court's workload.

Neil Gorsuch takes the oath of office at the U.S. Supreme Court on April 10, 2017.He then took part in a second ceremony with President Donald Trump at the White House. Photo: Franz Jantzen, Collection of the Supreme Court of the United States

Land-into-trust
Patchak v. Zinke is one of those Indian law cases that never seems to end. It's named for David Patchak, a non-Indian man who is upset with the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians, also known as the Gun Lake Tribe, for opening a gaming facility three miles from his home.

After the Supreme Court, back in 2012, ruled that Patchak could sue the Bureau of Indian Affairs for approving the casino, Congress stepped in with a fix. S.1603, the Gun Lake Trust Land Reaffirmation Act, confirms that the site of the Gun Lake Casino in Michigan is held in trust and can't be challenged long after it was placed in trust.

Last July, the D.C. Circuit Court of Appeals affirmed the constitutionality of the law. Yet Patchak has asked the Supreme Court to overturn the decision and Gorsuch will get a chance to weigh in when the petition is considered next week.

In prior cases, Gorsuch has seemingly supported the notion that tribes should be able to control their homelands. He's chastised local and state officials in Utah for repeatedly trying to encroach on the sovereignty of the Ute Tribe.

But even without Gorsuch around, the Supreme Court seems unwilling to take on tribal land cases. Just last week, the justices refused to hear Citizens Against Reservation Shopping v. Zinke, which was another long-running land-into-trust case. The Trump administration is urging them to do the same with Patchak's petition.

The nine justices will meet behind closed doors on April 21 to consider the petition, according to Docket No. 16-498. They are then expected to make an announcement on whether they will the case sometime afterward.

Tribal homelands and boundaries
Unfortunately for the Ute Tribe, Gorsuch won't be able to touch the petition in Myton v. Ute Tribe because it's one of his cases from the 10th Circuit.

The petition is still in the early stages but a brief from the tribe is due by Wednesday. At issue is whether the boundaries of the Uintah and Ouray Reservation have been diminished by Congress. Gorsuch concluded that they weren't in a grand slam ruling last August.

"Judge Gorsuch has been very instrumental in protecting tribal sovereignty," Bruce Ignacio, a tribal council member, said at NCAI's meeting in February.

The state of Utah has filed a brief in support of the town's attempt to overturn Gorsuch's decision. It's possible the Supreme Court may ask for the Trump administration for its views on the matter.

More land-into-trust
Yet another land-into-trust dispute is being presented to the justices in Central New York Fair Business Association v. Zinke.

At issue is the BIA's historic acquisition of more than 13,000 acres for the Oneida Nation. The 2nd Circuit Court of Appeals sided with the agency in November but a group called the Central New York Fair Business Association is seeking to overturn the victory.

The petition is still in the very early stages but the Trump administration will most likely mount a strong defense of the BIA, similar to its brief in Citizens Against Reservation Shopping. The response is due by April 19.

Tribal immunity
The petition in Sun v. Mashantucket Pequot Gaming Enterprise is coming up quickly and it touches on an issue with which Gorsuch is very familiar: tribal sovereign immunity. According to NARF's review, he sided with tribes in immunity cases 5 out of 6 times.

A group of gamblers is trying to sue the Mashantucket Pequot Tribal Nation to recover more than $2 million in disputed casino deposits and earnings. Although the 2nd Circuit did not decide the case on immunity grounds, they are asking the Supreme Court to revive their lawsuit. Immunity issues would eventually surface if that happens.

The petition is being considered at a closed-door conference on Thursday, according to Docket No. 16-1008. The tribe declined to respond, a sign that it believes the case has little chance of being accepted. The Supreme Court rarely hears Indian gaming cases -- only two in the last 15 or so years.

Tribal immunity, again
The petition in Tunica-Biloxi Gaming Authority v. Zaunbrecher is another one that could benefit from Gorsuch's experience because it's all about sovereign immunity. At issue is whether employees of the Tunica-Biloxi Tribe can be held liable in connection with a fatal accident.

The new justices, however, might have to stay far away from the petition because it's linked to Lewis v. Clarke, which so far is the lone Indian law case on the current docket. The court heard arguments in January, before Gorsuch came on board, and the decision will likely dictate how the Tunica-Biloxi petition is resolved because both deal with tribal employees who are being sued.

Further, the attorney who is representing William Clarke, an employee of the Mohegan Tribe, is the same person who introduced and wholeheartedly endorsed Gorsuch during his confirmation hearing last month.

It's not clear when the justices will issue a decision but their last immunity case, before Lewis v. Clarke, was a close one. In Michigan v. Bay Mills Indian Community, the court held that the state of Michigan could not sue the Bay Mills Indian Community in connection with a disputed casino.

The vote in Bay Mills was 5-4, with Scalia and other conservative-leaning judges going against the tribe. The outcome in Lewis v. Clarke could bring a repeat of last year's deadlock in Dollar General Corporation v. Mississippi Band of Choctaw Indians.

The eight justices were unable to reach a decision in the case, a move that affirmed a lower court victory in favor of the Mississippi Band of Choctaw Indians. A tie would benefit tribal interests in Lewis v. Clarke.

Native American Rights Fund Documents:
Nomination of Neil Gorsuch to the Supreme Court of the United States – An Indian Law Perspective | Neil Gorsuch: Summary of Indian Law Cases