Such line of thinking helps explain the high stakes in Murphy. Should the Supreme Court agree with the state and the federal government, the Muscogee (Creek) Nation isn't the only tribe faced with a broken treaty. Indeed, the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation would also be impacted by a negative ruling in the case. Overall, the lands promised by treaties to the so-called Five Civilized Tribes total about 19 million acres, Nagle reports on This Land. The treaties are to remain in force "for as long as the waters run and the grass grows," Nagle notes on the podcast, which will run for eight episodes, with new installments delivered every Monday. Nagle of course will break news when a decision emerges from Washington, more than 1,200 miles from the lands at issue in the case, which stands out for several reasons. It's unusual in that the justices ordered the parties to submit additional briefs following last November's hearing, something that almost never happens in an Indian law case. It's even more unusual in that Justice Neil Gorsuch, who has become a reliable ally for tribal interests despite being picked by a president whose policies and actions have been disastrous for Indian Country, has recused himself. He hasn't publicly explained why but it's likely that he came into contact with the case when he served on the 10th Circuit before joining the Supreme Court. His absence leaves Murphy up to 8 justices, raising the possibility of a 4-4 tie. That's happened not just once, but twice in an Indian law case in the last three years. Like those two prior cases, a deadlock in Murphy would represent a win for tribal interests. It would merely affirm the 10th Circuit victory in favor of the Creek Reservation. But a tie would reveal little about the thoughts of the justices, making it more difficult for tribes and their advocates to come up with effective strategies for protecting their rights. In both instances, the Supreme Court simply issued "per curiam" decisions consisting of one sentence on one single page.
Watching and waiting... https://t.co/Vrktsjpd38— Rebecca Nagle (@rebeccanagle) June 3, 2019
End of term waitsIt's been 190 days since oral arguments in Murphy but Indian Country is used to long waits in contentious Supreme Court cases. The decision in Michigan v. Bay Mills Indian Community, a sovereign immunity case that went in favor of tribal interests, arrived on May 27, 2014. That was 177 days after the justices heard arguments on December 2, 2013. More recently, the decision in Dollar General Corporation v. Mississippi Band of Choctaw Indians, a tribal jurisdiction case, emerged from the Supreme Court on June 23, 2016, some 200 days later. That turned out to be one of the 4-4 ties in which the Mississippi Band of Choctaw Indians secured its right to exercise authority over a lawsuit involving a non-Indian party. The Supreme Court also likes to make Indian Country wait for decisions until the final weeks of their terms, which start in October and typically run to the end of June. For Washington v. U.S., the ruling dropped on June 11, 2018, and it turned out to be another 4-4 tie, although one that upheld a victory in favor of treaty rights in Washington state. In Adoptive Couple v. Baby Girl, the justices waited until June 25, 2013, to issue a ruling. It turned out to be a defeat -- the court allowed a non-Indian couple to adopt the child of a Cherokee Nation citizen over his objections.
I think the best we can hope for is a 4-4 split which upholds the favorable ruling below. I’m afraid the Justices will abandon the Solem test and come up with a justification to rule for Oklahoma.— Joe Keene (@osage25) May 28, 2019
No new casesIn addition to meeting on Monday and issuing four decisions, the Supreme Court issued an order list. In it, the justices denied a petition in Allergan, Inc. v. Teva Pharmaceuticals USA, Inc., meaning the case wasn't added to the docket. Though it's hard to tell from the name alone, the case was involved the Saint Regis Mohawk Tribe, whose leaders entered into an agreement to acquire the patents of a popular drug used to treat dry eye conditions. The Federal Circuit Court of Appeals opened the door for challenges to those patents, a ruling that stands as a result of the denied petition. Previously, the Supreme Court denied a petition in Saint Regis Mohawk Tribe v. Mylan Pharmaceuticals, Inc., which was about sovereign immunity. In this instance, the Federal Circuit held that the tribe can't assert immunity in proceedings before the U.S. Patent Trial and Appeal Board, a ruling that also remains on the books.
Action on pending petitionsThis Thursday, the Supreme Court is holding what it calls a "conference," during which pending petitions are considered for possible addition to the docket. Three petitions of interest -- all coincidentally matters from Washington state -- are being reviewed during the conference, which takes place behind closed doors. Teck Metals LTD v. The Confederated Tribes of the Colville Reservation. At issue is a victory won by the Colville Tribes to hold a Canadian company responsible for dumping millions of tons of mining waste into Columbia River for more than a century. The pollution is coming from the world’s largest lead and zinc smelter in British Columbia, Canada. Granting of the petition would represent a setback for the tribe's efforts to protect its homelands in Washington from the waste. Mitchell, et al. v. Tulalip Tribes of Washington. At issue is whether the Tulalip Tribes can exercise jurisdiction over non-Indian fee land on the reservation in Washington. The non-Indian plaintiffs lost the case and are trying to get the Supreme Court to revive it. King Mountain Tobacco Company, Inc. v. United States. In April, the Supreme Court affirmed the treaty rights of the Yakama Nation in connection with state-imposed taxes on a gasoline business on the reservation in Washington. A tobacco business is hoping the ruling brings the same benefits to his operation in connection with $58 million in federal taxes. Should any of the petitions be granted, the Supreme Court will announce it in an order list. Typically, the list is issued on the Monday following a Thursday conference.
Another conferenceThe Supreme Court has additional conferences scheduled, including one on June 20. That's when the petition in Poarch Band of Creek Indians v. Wilkes is to be considered, according to an update made to the docket on Tuesday. At issue is whether an employee of the Poarch Band of Creek Indians is entitled to sovereign immunity in connection with a vehicle accident that occurred in Alabama. The tribe argues that the employee enjoys immunity protections while the non-Indian plaintiffs who were injured in the accident contend otherwise. The Alabama Supreme Court sided with the non-Indians in a decision now being challenged by the tribe. But the petition has been in a holding pattern in order for the Trump administration to submit a brief in the matter. The 19-page brief arrived on May 21. In it, attorneys from the Department of Justice urged the Supreme Court not the take the case in the event the tribe adopts changes to its sovereign immunity laws in a matter that would allow the non-Indians to pursue their lawsuit in tribal court. If the changes are adopted, which could happen at a tribal council meeting on Thursday, the government says the Supreme Court should grant the petition and vacate, or erase, the negative Alabama ruling, on order for a more complete record to be developed in the case. But if the tribe fails to approve the new sovereign immunity law, the government calls for the petition to be denied, contending the lower ruling won't have much of an impact in Indian Country. "Although the Alabama Supreme Court’s decision is erroneous, it is an outlier," attorneys for the Trump administration wrote in the brief. "Given the clear conflict between the decision below and this court’s precedent, other state and federal court are unlikely to adopt its reasoning or conclusion."
The opinions released today were BORING! I can't believe I got excited for that!— Lajka in Orbit (@lajkainorbit) June 3, 2019
Outside of Murphy, still some decisions with big implications for Indian Country, like Gamble.
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