Citizens of the Muscogee (Creek) Nation participate in a stomp dance on the opening day of the tribe's 45th annual festival. This year's event took place June 20-23, 2019, in Okmulgee, Oklahoma. Photo: MCN Public Relations

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Supreme Court makes Indian Country wait for decision in closely-watched case

Monday, June 24, 2019

By Acee Agoyo

WASHINGTON, D.C. -- The U.S. Supreme Court met again on Monday and turned down more Indian law appeals even as they held tight to a decision in one of the most consequential cases in recent history.

In an order list released in the morning, the justices declined petitions in two long-running cases. In each instance, the action affirmed lower court decisions that went against a tribe and a tribal citizen's interests.

The development means the nation's highest court has no Indian law cases on the docket as the justices wind down a session in which they heard three substantial disputes. Looking ahead, only two petitions of interest are being watched by tribes and their advocates, a surprising change from recent seasons in which dozens of challenges were mounted to a wide range of issues.

But while the future workload is refreshingly light, Indian Country is on pins and needles as the wait continues for a decision in Carpenter v. Murphy. Oral arguments in the closely-watched case took place a whopping 210 days ago, making it the oldest on the docket without resolution.

"Pardon the pun, but the Carpenter v. Murphy decision is running on 'Indian time,'" one observer noted on social media, a sentiment shared by others who are eagerly awaiting the outcome in a case that will impact the Indian Country status of millions of acres in Oklahoma and determine whether one tribal citizen will remain on death row for a crime committed on those lands.

😬😬😬 (This is my face every time they’re releasing decisions lately) https://t.co/6embPXWxmw
— Dr. Adrienne Keene (@NativeApprops) June 24, 2019

This decision, when it finally comes, is going to be such a doozy. Inevitably, it’s going to be super racist. It’s pretty clear that they’ve been delaying this decision for months now because they are trying to figure out a way to steal these reservations without seeming racist. https://t.co/823fbsLqrL
— Micah Wright (@MicahWright) June 24, 2019

My challenge this week: SCOTUS stalking for a Murphy ruling while not getting busted for having my phone out during physical therapy. Challenge accepted.
— Lenzy KB (@LenzyKB) June 24, 2019

Tribal immunity

Without comment, the Supreme Court on Monday declined a petition in Poarch Band of Creek Indians v. Wilkes, a sovereign immunity case.

The Poarch Band of Creek Indians filed the petition 16 months ago after the Alabama Supreme Court issued a negative and admittedly aberrant decision which opened the tribe up to a lawsuit in connection with an accident blamed on one of its employees. The appeal languished for so long in part because the justices asked the Trump administration for its views in the matter.

In answering the call, the Department of Justice, described the Alabama decision as "erroneous" and "an outlier." Still, the Supreme Court did not see fit to review it, though it's not clear why since the order was issued without explanation, as is typical practice.

As the wait dragged out, the tribe changed its sovereign immunity laws in order for the non-Indian parties to proceed with their dispute in the Poarch Creek judicial system. But that concession makes little difference now, as the case will return to the Alabama courts with the negative ruling intact.

"The decision eviscerates a 'core aspect[] of sovereignty' that the tribe possesses," attorneys told the Supreme Court earlier this month. "It also could threaten the financial well-being of the tribe over the long run."

Dual sovereignty

Bearcomesout v. United States, the second petition denied on Monday, puts an end to another long-running matter.

Tawnya Bearcomesout, a citizen of the Northern Cheyenne Tribe who was convicted of killing her common-law husband, filed her petition a whopping 19 months ago. Yet the Supreme Court kept putting it off, raising speculation that trouble was brewing in the nation's capital.

The wait, however, turned out to be uneventful. No justice -- not even Clarence Thomas, who has frequently questioned long-standing principles of Indian law -- wrote to explain why the case wasn't worth granting.

But the silence seems less surprising given the Supreme Court's action last week in another long-running case. It took the justices 194 days to affirm the dual-sovereignty doctrine in Gamble v. United States, meaning that a person can be prosecuted for the same crime by separate sovereigns without infringing on her constitutional rights.

That is the case with Bearcomesout, who was convicted in federal court and again in Northern Cheyenne court in connection with the death of her husband, whom she accused of abusing her. She ended up serving far more time than anticipated because she repeatedly violated the conditions of her release.

This Land, a podcast by Rebecca Nagle

The long wait

The Supreme Court is meeting again on Wednesday morning to release opinions, so an answer in Carpenter v. Murphy might be known soon enough, Indian time or not.

The outcome will determine whether the reservation of the Muscogee (Creek) Nation -- which was set aside by treaty following the tribe's forced removal from its homelands -- continues to exist. The 10th Circuit Court of Appeals confirmed that it does, meaning the state of Oklahoma lacks jurisdiction to prosecute Patrick Dwayne Murphy, a Creek citizen, for the death of a fellow citizen on their tribe's lands.

The case also impacts four other tribes -- the Cherokee Nation, the Chickasaw Nation, the Choctaw Nation and the Seminole Nation -- whose ancestors also signed treaties under similarly forced circumstances more than a century ago. The status of about 19 million acres and the rights of those tribes to use the land as they see fit hangs in the balance in Murphy.

"That's what my ancestors sacrificed everything for: sovereignty," Cherokee citizen Rebecca Nagle says on the fourth episode of her podcast This Land. She's focusing on the history of Murphy and its significance in Indian Country on the podcast and will break news of the decision when it happens.

The Executive Branch Meet and Greet was held on the Council House lawn this year and included: the newly named US Poet Laureate Joy Harjo, the swearing in of our MCN Ambassador Jonodev Chaudhuri and the MCN Royalty.
Posted by The Muscogee Creek Nation on Saturday, June 22, 2019

Muscogee (Creek) Nation: Executive Branch Meet and Greet with newly named U.S. Poet Laureate Joy Harjo

But with a decision in Murphy imminent, 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.

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