John Dossett, general counsel for the National Congress of American Indians, discusses U.S. Supreme Court litigation at the organization's winter session in Washington, D.C., on February 14, 2018. Standing on the far right is Joel Williams, a staff attorney with the Native American Rights Fund. Photo by Indianz.Com (CC BY-NC-SA 4.0)

Tribes see continued challenges as more cases head to highest court

An unusually large number of Indian law petitions have been presented to the nation's highest court as tribes face continued challenges to their sovereignty.

The U.S. Supreme Court ends up rejecting most of the petitions. Very few cases, in fact, are heard by the justices.

But the court's current term, which began last October, has already seen three Indian law cases added to the docket. And there are petitions pending in eight more cases, forcing tribes and their advocates to spend more time -- and more money -- responding to the threats.

"It's been a very busy Supreme Court term," Joel Williams, a citizen of the Cherokee Nation and a staff attorney at the Native American Rights Fund, said during the winter session of the National Congress of American Indians in Washington, D.C., last week.

John Dossett, NCAI's general counsel, echoed that assessment. He said the organization is spending more money on litigation than anticipated due to the large number of petitions -- more than two dozen have been followed by Tribal Supreme Court Project, a joint initiative of NARF and NCAI, in recent months.

"It's been one of the busiest years ever," Dossett said last Wednesday in D.C.

Tribal Homelands

Some of the latest challenges impact tribes and their homelands, with the petition in Public Service Company of New Mexico v. Barboan shaping up to be one of the most high-profile.

A utility company has been trying to condemn land on the Navajo Nation in order to keep operating a power line on the reservation. But in a landmark ruling, the 10th Circuit Court of Appeals put a stop to the effort, citing the tribal government's shared ownership in some of the allotments at issue in the dispute.

The Public Service Company of New Mexico is now asking the Supreme Court to overturn the May 2017 decision, which the tribe had hailed as an affirmation of its sovereignty. The petition, which was filed on November 20, 2017, has already drawn amicus briefs from energy industry interests across the country.

"When allotting reservation lands to individual Indians 100 years ago, Congress made clear its intent to 'extinguish tribal sovereignty' over those lands," a brief signed by the Edison Electric Institute, the Association of Oil Pipe Lines and the American Gas Association reads.

Navajo Nation Vice President Jonathan Nez, left, and President Russell Begaye hold up a portion of the original Treaty of 1868 at the National Museum of the American Indian in Washington, D.C., on February 20, 2018. The treaty is on display as part of the museum's Nation to Nation exhibit. Photo: Office of the President and Vice President

The Navajo landowners, who haven't been paid since 2010 for the use of their allotments, and the Navajo Nation have been given until March 23 to respond to the petition. The Trump administration -- whose track record on Indian issues has been spotty -- also must respond.

“When that choice is between tribes and industry, this administration leans heavily, if not entirely, to the industry side,” Rep. Raúl Grijalva (D-Arizona), the top Democrat on the House Committee on Natural Resources, told NCAI last Tuesday.

The Trump team has indeed shown its cards in another tribal homelands case. At issue in Royal v. Murphy is whether the boundaries of the Muscogee (Creek) Nation were diminished when Congress allotted portions of the reservation in the early 1900s.

As with the Navajo case, the 10th Circuit sided with tribal interests in a landmark August 2017 ruling. That's when the new administration decided that it didn't want to shoulder the burden of prosecuting a Muscogee citizen who is accused of murdering a fellow citizen on an allotment in Oklahoma.

Rather than assert its trust responsibility, the Department of Justice said the reservation was in fact diminished by Congress after the state and industry interests -- including one of the same oil and gas groups that already submitted a brief in Barboan -- asked the 10th Circuit to rehear the case. The request was eventually denied but the damage was already done.

According to government attorneys, the reservation was disestablished because "Congress was focused on a single, unique goal—to create an entirely new state—but it pursued that goal through a series of statutes that sought to dismantle the tribe, abolish its government and disestablish its national territory, and assimilate its members into the citizenry of the new state of Oklahoma."

An exhibition featuring Muscogee (Creek) Nation veterans was displayed at the National Museum of the American Indian in Washington, D.C., in 2012. Photo: Tim Evanson

The petition in Royal was filed on February 8, so the process is just getting started. But it's also shaping up to be a high-profile one.

The Supreme Court's docket sheet notes that it is a "CAPITAL CASE." The state of Oklahoma sentenced Muscogee citizen Patrick Dwayne Murphy to death for the murder of George Jacobs in 1999 and is seeking to preserve its jurisdiction over the crime even if it occurred on an Indian allotment.

The attorney who filed the petition on behalf of the prison warden in Oklahoma is Lisa S. Blatt. Her name is familiar to tribal advocates because she has defended the Washington NFL team in its trademark fight against Native activists. She also argued -- and won -- Adoptive Couple v. Baby Girl, an infamous Indian Child Welfare Act case that went against tribal interests.

Murphy's response to the petition is due March 9 and the Oklahoma warden will be able to file one more reply before the Supreme Court takes the matter under advisement. If the justices end up rejecting the petition, federal prosecutors would be able to exercise jurisdiction over the 1999 murder since it occurred in Indian Country.

Tribal Treaties

It's not yet clear whether the Supreme Court will ask the Department of Justice for its views in Murphy's case. That's something already happening in two pending petitions, both of which involve treaty rights.

At issue in Herrera v. Wyoming is whether a citizen of the Crow Tribe can be prosecuted by the state of Wyoming for hunting in an area covered by an 1868 treaty. The lower courts have so far sided with the state but the Trump administration's brief -- which has not yet been filed -- could influence the matter.

The new administration likewise has not yet filed its brief in Washington State Department of Licensing v. Cougar Den. At issue is whether the 1855 Yakama Treaty, which guarantees "free and open access" to the commercial market for citizens of the Yakama Nation, protects them from fuel taxes imposed by the state of Washington.

On the Docket

Of the three Indian law petitions already accepted by the Supreme Court, only one of them -- Patchak v. Zinke -- has been heard. The outcome will determine whether Congress can protect tribes from attacks on their land-into-trust applications. A decision is expected before the end of June.

Arguments in Upper Skagit Indian Tribe v. Lundgren take place on March 21 and the outcome will determine whether a property dispute can proceed without the involvement of the Upper Skagit Indian Tribe. The case is unusual in that the Supreme Court accepted it at the tribe's request.

Arguments have yet to be scheduled in Washington v. U.S., another treaty rights case. The outcome will determine whether the state of Washington is responsible for failing to fix hundreds of culverts, or passageways for salmon. The state's attorney general has said he is open to a settlement, which could protect tribal interests from a negative decision.

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