Supreme Court Decision: Gamble v. United StatesSyllabus | Opinion [Alito] | Concurrence [Thomas] | Dissent [Ginsburg] | Dissent [Gorsuch]
Supreme Court Documents: Gamble v. United StatesDocket No. 17-646 | Questions Presented | Oral Argument Transcript
Tawnya BearcomesoutWith Gamble out of the way, the Supreme Court is finally ready to resolve Tawnya Bearcomesout's long-delayed petition at a conference this Thursday. The docket sheet in her case, No. 17-6856, was updated on Monday after the long-awaited ruling came out. Since a clear majority of justices support the dual-sovereignty doctrine, it seems Bearcomesout v. United States will be denied. Regardless of the answer, it will have little impact on Bearcomesout's case -- she has already served her separate tribal and federal sentences for her crime. Bearcomesout pleaded guilty to one charge of involuntary manslaughter, admitting she stabbed and killed her husband, identified in court filings as "B.B." According to federal prosecutors, she said she was attacked at their home on the Northern Cheyenne Reservation in Montana. "Bearcomesout stated that she and B.B. got into an altercation on the night of his death and that he hit her head against the sink. She explained that she stabbed B.B. because he was beating on her and nobody was helping her," an offer of proof filed by federal prosecutors stated. Bearcomesout suffered injuries during the November 2014 fight, according to the document. In her subsequent petition to the Supreme Court, her federal public defenders said she had a "black eye and several cuts on her face and head." In November 2016, a federal judge sentenced Bearcomesout to time served. She had already spent 17 months in tribal custody so she had basically served all of the time that would have been imposed on her under the terms of her plea agreement with the federal government. But as Bearcomesout was taking her case to the 9th Circuit Court of Appeals, a right she reserved in her plea agreement, she got into trouble and violated the terms of her release by failing to participate in substance abuse testing and substance abuse treatment. She also failed to make payments toward restitution to her tribe and to her victim's family. Around the same time, she pleaded guilty to driving under the influence in Northern Cheyenne court. Alcohol had been a factor in the death of Brett Beckman, who had been her common-law husband. Bearcomesout ended up serving another six months in federal prison for 11 violations of her probation. But after being released in January 2018, she was again arrested in July of last year and later admitted to nine additional violations. She was finally released from federal custody last September, while her petition with the Supreme Court was still in limbo. "The decision ultimately rendered in Gamble will do nothing to resolve whether Indian tribes are truly sovereign given Congress’s plenary power over Indian persons and the general erosion of tribal sovereignty," her federal defender wrote on September 5, 2018, two days before Bearcomesout was released. In a statement that has turned out to be true, and in a foreshadowing of the "WHOLE" argument advanced by Justice Ruth Bader Ginsburg, the federal defender wrote that "Gamble will not reconsider this Court's Indian law precedents in the context of successive prosecutions by parts of the United States."
The conferenceIn addition to considering Bearcomesout v. United States at their conference this Thursday, the justices are scheduled to review the petition in Poarch Band of Creek Indians v. Wilkes. 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 was kept in limbo for months while Trump administration developed 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.
Those changes were in fact approved at a council meeting on June 6, the tribe said in a second supplemental brief filed a day later. But in a break from the government's position, the tribe believes the petition should still be granted in order to send a strong message to the Alabama court. "Petitioners do not believe that it is appropriate to grant, vacate, and remand for the Alabama Supreme Court to reconsider its decision for a simple reason: There is little doubt that the court will reaffirm its previous decision," the tribe said in a supplemental brief filed on June 5. The non-Indians, not surprisingly, don't agree with the tribe or the government. They still want the Supreme Court to reject the petition, regardless of the new waiver of sovereign immunity in Poarch Creek law. "Had the tribe wanted the Alabama courts to consider the availability of tribal court or a tribal administrative process in this litigation, it could have amended its code long ago," attorneys for Casey Marie Wilkes and Alexander Jack Russell wrote in their June 4 supplemental brief. The accident at issue occurred more then four years ago, they note. The route the Supreme Court takes on Bearcomesout and Poarch Creek should be known soon enough after the June 20 conference. The justices typically release an order list on the Monday following a Thursday conference.
Attorney Lori Madison Stinson of the Poarch Band of Creek Indians discusses a negative sovereign immunity decision from the Alabama Supreme Court: “For the Poarch Band…the sky did fall.” Petition to overturn the decision is pending before US Supreme Court. @USETINC pic.twitter.com/szV3EdDi20— indianz.com (@indianz) March 5, 2019
The long wait continuesIn addition to holding a conference on Thursday, the justices are going to release more opinions. Will Carpenter v. Murphy, the only outstanding Indian law case of the current term, be among them? It's been 204 days since oral arguments in the case, making it one the second oldest on the docket. Only Gundy v. United States, a criminal matter, is older, having been argued a whopping 260 days ago. Murphy will determine whether the reservation of the Muscogee (Creek) Nation -- which was set aside by treaty -- continues to exist. Opponents in Oklahoma claim it doesn't but none would go on the record when asked by Rebecca Nagle, a citizen of the Cherokee Nation who is examining the case in her podcast This Land. As Nagle notes in the third episode, The Opposition includes the state of Oklahoma, the oil and gas industry in Oklahoma, law enforcement in Oklahoma and other business interests in Oklahoma. They argued that the continued existence of the reservations of not just the Muscogee (Creek) Nation but of the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation -- some 19 million acres total -- would wreak havoc on resource development, regulation, criminal prosecutions and a whole host of other matters. In total, Nagle said she contacted dozens of people connected to the opposition, and even reached out to members of Congress from the state, to get a better understanding of the sweeping claims made in briefs and during arguments on November 27, 2018. "But no one would talk to us until after the Supreme Court's decision," Nagle reported.
Whether or not the decision in Murphy comes out Thursday, 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. It turned out to be a 4-4 tie 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 was another 4-4 tie, 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.
It's time for the 45th annual Muscogee (Creek) Nation Festival! The event runs June 20-23 in Okmulgee, Oklahoma. Photo: Muscogee Nation Festival
Posted by Muscogee Nation Festival on Wednesday, June 12, 2019
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