Supreme Court poised to take action on some major Indian law petitions

Monday, June 18, 2018  

The U.S. Supreme Court is almost finished with its current term, one in which Indian Country fared surprisingly well.

Of the three cases decided since last October, two were complete victories for tribal interests, even if one came about by unusual means. And while the third matter wasn't completely resolved, the court helped advance the ball by addressing a lingering sovereignty issue.

But while the justices will be going on a break for the summer, they aren't by any means done with their Indian law docket. They are going to hear Royal v. Murphy, a closely-watched reservation boundary case, when they come back to work in October.

And before they go on recess at the end of the month, the justices are meeting behind closed doors this Thursday for a conference, one in which three major Indian law disputes are being reviewed. There's also a fourth matter that might finally see resolution.

Reservation boundaries

If Royal is any indication, the Supreme Court is eager to provide guidance in reservation boundary disputes. At issue is whether the Muscogee (Creek) Nation was diminished by an act of Congress. An appeals court ruled that it hadn't been reduced, a victory that the state of Oklahoma s hoping to overturn.

But that same court came to a different conclusion with respect to the Eastern Shoshone Tribe and the Northern Arapaho Tribe. The 10th Circuit Court of Appeals held that a portion of the Wind River Reservation in Wyoming is no longer Indian Country because it was opened to allotment by Congress in 1906.

The tribes are now asking the Supreme Court to overturn the ruling. In doing so, they no longer have the support of their biggest advocate -- the federal government, which had backed them during the Obama era.

While the case was still at the 10th Circuit, the Trump administration abandoned the tribes after the court ruled against the Environmental Protection Agency, whose leader incidentally lost the Royal decision when he was Oklahoma's top legal official. Government attorneys are in fact telling the Supreme Court to deny the petitions in Eastern Shoshone Tribe v. Wyoming and Northern Arapaho Tribe v. Wyoming, both of which are being reviewed this Thursday.

Denying the petitions would represent the final defeat for the tribes. Granting them, on the other hand, would give them another shot at proving the reservation remains intact.

Treaty rights, Part one

The Trump administration is playing a critical role in another petition being reviewed on Thursday. At issue in Washington State Department of Licensing v. Cougar Den is whether citizens of the Yakama Nation must pay a fuel tax to the state of Washington.

The state's highest court ruled that the tax violates the 1855 Yakama Treaty, which specifically guarantees "free access" to public highways. But the Trump team argued otherwise in a brief that took more than seven months to emerge from the nation's capital.

The brief was so significant that the owner of Cougar Den, a fuel company based on the reservation, felt compelled to respond. In a supplemental filing, attorneys for the business accused the Trump administration of going to great lengths to "manufacture" a reason for the Supreme Court to hear the case.

Treaty rights, Part two

Yet another shakeup, courtesy of Washington, D.C., is at play in another big Indian law petition. At issue in Herrera v. Wyoming is whether citizens of the Crow Tribe retain off-reservation treaty rights in Wyoming.

The state's highest court ruled that the tribe's hunting rights did not survive Wyoming's admission to the Union. But in contrast to Cougar Den, the Trump administration is backing Clayvin Herrera, the Crow citizen who was prosecuted for killing elk in the Bighorn Mountains.

Again, the filing was so significant that it prompted Wyoming to respond. The state, perhaps sensing the writing on the wall, seemingly raised a new argument in hopes of convincing the Supreme Court to deny the petition. Then Herrera came in and a criticized the state's "last-ditch effort to avoid review."

A lingering dispute

Another petition is being reviewed on Thursday. And it's an unusual one, not because of the subject matter, but because of the way it's been repeatedly delayed without a public explanation.

At issue in Bearcomesout v. United States is whether a citizen of the Northern Cheyenne Tribe can be prosecuted by her government and by the United States for killing her common-law husband, whom she accused of beating her. Recent precedent suggests that Tawnya Bearcomesout, who has already been punished for the crime, can in fact be tried by both sovereigns with violating her constitutional rights.

Despite the seemingly settled nature of the case, the Supreme Court has failed to resolve Bearcomesout. It's been "distributed for conference" for 11 times since January, according to Docket No. 17-6856, a record in an Indian law case.

So what's the holdup? Watchers of the court believe the justices will in fact deny the petition.

But they also suspect one member -- perhaps Justice Clarence Thomas -- has been spending the past six months crafting a dissent to the denial in order to explain why his views on Indian law and Indian policy, despite falling outside of the mainstream, should prevail.

Indianz.Com on SoundCloud

Jam out with the justices! Listen to lawyers! No, really, these are important U.S. Supreme Court cases.