The members of the U.S. Supreme Court sit for an official portrait. Front row, from left: Associate Justice Stephen G. Breyer, Associate Justice Clarence Thomas, Chief Justice John G. Roberts, Jr., Associate Justice Ruth Bader Ginsburg, Associate Justice Samuel A. Alito. Back row, from left: Associate Justice Neil M. Gorsuch, Associate Justice Sonia Sotomayor, Associate Justice Elena Kagan, Associate Justice Brett M. Kavanaugh. Photo: Fred Schilling, Collection of the Supreme Court of the United States

Supreme Court takes up another Indian law case with few on the horizon

Tuesday, January 8, 2019

By Acee Agoyo

Update: The U.S. Supreme Court has posted the transcript of the oral argument in Herrera v. Wyoming, the treaty rights case.

The U.S. Supreme Court is taking up its third -- and possibly final -- Indian law case of the term after delivering victories to tribes across the nation by refusing to hear challenges to their sovereign rights.

In an order list on Monday, the justices denied petitions in three pending matters. The action means that lower court victories in favor of the Osage Nation, the North Fork Rancheria of Mono Indians and the Ute Tribe will stand.

Tribes and trust assets

For the Osage Nation, the tribe will be at the table in regards to a large-scale wind farm on its homelands in northeastern Oklahoma. The Osage Minerals Council was never consulted about the project, which was a violation of the federal government's trust responsibilities, the 10th Circuit Court of Appeals previously determined.

Despite the ruling, the Osage Wind has remained in operation near Pawhuska, the tribe's capital, for more than three years. But with the denial of the petition in Osage Wind v. United States, the tribe will be able to seek compensation for the use of its trust assets, Everett Waller, the chairman of the mineral body, said on Monday.

A sign on the Osage Nation in Oklahoma. Photo: Jimmy Emerson

“Enel’s decision to build a wind farm on our land without our approval caused substantial damage to the OMC," Waller said in regards to Enel Green Power North America, the developer of the project.

"We are pleased that the United States Supreme Court has left in place the 10th Circuit decision that the OMC, like other property owners, has the right to obtain compensation for use of its land," Waller added. "It is a substantial victory for tribes, and more generally for mineral property rights owners.”

Tribal homelands

The North Fork Rancheria was likewise celebrating after the justices declined the petition in Stand Up for California! v. U.S. Department of the Interior. That means the tribe's homelands in central California will remain in trust thanks to a decision from the D.C. Circuit Court of Appeals.

"THAT CASE IS CLOSED!!" the tribe said in a post on Facebook on Monday.

Justice Brett Kavanaugh, who joined the court last October after a bruising confirmation battle that saw Alaska Natives oppose his nomination, did not take part in consideration of the petition, according to the order list. No reason was given for his absence but such recusals are common in situations where a judge might have come across the case in the past.

Kavanaugh used to serve on the D.C Circuit, which delivered victory to the North Fork Rancheria in January 2018. He didn't participate in the ruling but he may have seen the case when opponents of the tribe unsuccessfully tried to get the court to rehear it.

Leaders of the Ute Tribe honored Rich Snyder, second from left, last October for donating ancestral property in Colorado their people. Photo: Ute Tribe

Tribal courts

In the third matter resolved on Monday, the justices denied a petition in Harvey v. Ute Indian Tribe of the Uintah and Ouray Reservation. And like the others, the news was good for the Ute Tribe, whose sovereign rights have been the subject of repeated legal challenges.

The action means that a non-Indian business owner who has repeatedly clashed with tribal officials would have to seek justice on the reservation before going elsewhere. The Utah Supreme Court confirmed the validity of the so-called tribal court exhaustion doctrine in a November 2017 decision.

The exhaustion doctrine is well-established in the federal system but Ryan Harvey attempted to avoid it when he accused the tribe of extorting his energy service businesses with a lawsuit in state court. In doing so, he came up against a powerful voice -- the Department of Justice, which called for the petition to be denied.

Tribal nations "retain considerable control over nonmember conduct on tribal land," government attorney wrote in their brief, quoting from a prior Supreme Court decision involving tribal authority.

Pending petitions

The three denials leave outstanding petitions in just two Indian law cases being monitored by the Tribal Supreme Court Project. According to the project, a joint initiative of the National Congress of American Indians and the Native American Rights Fund, the justices have rejected nine petitions of interest since the start of the October 2018 term.

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 without violating her constitutional rights.

But the Supreme Court has struggled to resolve the petition. It's been "distributed" for consideration a whopping 13 times in the last 13 months, according to Docket No. 17-6856, which is a record in an Indian law case.

And the Department of Justice has been of little help. Instead of offering a firm answer on the issue, government attorneys urged the court to delay the petition even longer, until a decision in Gamble v. United States can be issued.

"Because the Court’s decision in Gamble may affect the proper disposition of the petition for a writ of certiorari, the petition in this case should be held pending the decision in Gamble and then disposed of as appropriate in light of that decision," Solicitor General Noel J. Francisco, who represents the federal government in cases before the Supreme Court, wrote in a memorandum last August.

Francisco also has been asked to weigh in on Poarch Band of Creek Indians v. Wilkes, the second petition that remains unresolved. At issue is whether the Poarch Band of Creek Indians can be sued without its consent in connection with a negligence lawsuit.

The tribe lost at the Supreme Court of Alabama but is seeking further review of that decision. The Department of Justice has yet to submit a brief, which was requested on October 1.

Joel Williams of the Native American Rights Fund is updating the National Congress of American Indians on Supreme Court litigation. Three Indian law cases have been granted so far and will be heard by the justices. “We’ve had a very busy summer,” Williams said in Denver. #NCAI75 pic.twitter.com/Y86R9U1bF5
— indianz.com (@indianz) October 25, 2018

Pending decisions

So far in the October 2018 term, the Supreme Court has heard three Indian law cases, with decisions pending in all three. The first was Washington State Department of Licensing v. Cougar Den, which will determine whether citizens of the Yakama Nation must pay a gasoline tax to the state of Washington.

Oral arguments took place on October 30, with Chairman JoDe Goudy denied entry into the court's chambers after refusing to remove his traditional headdress. "My First Amendment right was violated,” he told Indianz.Com at the time.

The second case was Carpenter v. Murphy. The outcome of the closely-watched matter will determine whether the reservation of the Muscogee (Creek) Nation continues to exist.

The Trump administration has joined the state of Oklahoma in arguing that the reservation has been diminished. That would mean Patrick Dwayne Murphy, a Creek citizen, must remain on death row in Oklahoma for the murder of another Creek man, a crime that took place on an Indian allotment.

Arguments took place on November 27, with an attorney for Oklahoma advancing alarmist claims about criminal cases and even the Indian Child Welfare Act during the hearing. But the Supreme Court wasn't satisfied with the proceeding and, a week later, took the extraordinary step of ordering additional briefs from all of the parties in the case.

The third case is Herrera v. Wyoming, whose outcome will determine whether citizens of the Crow Tribe can be prosecuted for hunting on off-reservation treaty territory in the state of Wyoming. Arguments took place on Tuesday morning -- Gavin Clarkson, a citizen of the Choctaw Nation who ran for Congress last year, will be providing commentary for Indianz.Com in a forthcoming post.

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