The October 2018 termIn addition to Murphy, the Supreme Court's October 2018 docket included Washington State Department of Licensing v. Cougar Den and Herrera v. Wyoming. All three were based on treaties signed by tribes, as sovereign nations, and the United States government. A decision in Cougar Den arrived on March 19, by a vote of 5 to 4. With Gorsuch in the majority, the decision confirmed that Yakama Nation are not required to pay a fuel tax to the state of Washington because treaty signed with the United States in 1855 "pre-empts" the tax. On May 20, the Supreme Court issued the opinion in Herrera v. Wyoming. Again it was a 5 to 4 vote and again Gorsuch was in the majority in holding that citizens of the Crow Tribe did not lose their right to hunt under an 1868 treaty simply because Wyoming became a state. In both cases, the majority in favor of tribal interests consisted of, in order of seniority: Justice Ruth Bader Ginsburg, Justice Stephen G. Breyer, Justice Sonia Sotomayor, Justice Elena Kagan and Justice Neil Gorsuch. They represent the more liberal wing of the court, except for Gorsuch, who was nominated by President Donald Trump based on his perceived standing in the conservative community. The conservative leaning minority against tribal interests in both cases consisted of, in order of seniority: Chief Justice John G. Roberts Jr., Justice Clarence Thomas, Justice Samuel Alito and Justice Brett Kavanaugh, another Trump nominee also chosen based on his perceived standing. As the justices were deciding Cougar Dem and Herrera, they were also being presented with petitions in other Indian law matters. One by one, they rejected them all, leaving their workload clear of future cases of interests to tribes and their advocates.
The October 2019 termMurphy for now bears the distinction of being the only Indian law case on the docket. But the outcome could affect a pending petition, another one from Oklahoma. Joe Johnson Jr., a prisoner at the Joseph Harp Correctional Center, argues that he was wrongly prosecuted by the state for an incident that occurred within the boundaries of the Seminole Nation. He cites the historic appeals court ruling in Murphy as grounds for the Indian Country status of the tribe's homelands. "The Seminole nation and it's people survived as Indian Country into the 21st Century," Johnson wrote in the petition he sent to the Supreme Court on his own behalf. The justices, however, have yet to inform Johnson whether his petition will be accepted or denied. According to Docket No. 18-6098, it's been pending since February -- after oral arguments in Murphy. Crimes in Indian Country that are committed by Indian defendants are normally prosecuted in the federal system. That's what would presumably happen to Patrick Dwayne Murphy, a citizen of the Muscogee (Creek) Nation who is accused of murdering a fellow Creek citizen within tribal boundaries, should the Supreme Court affirm the victory he secured at the 10th Circuit Court of Appeals in 2017. But as the justices prepared to meet for the final day of the term, they relisted Johnson's petition for consideration after months of failing to take action. According to the docket, it's being reviewed at a closed-door conference on Thursday. "Ten percent of the population is Indian," Deputy Solicitor General Edwin Kneedler of the Department of Justice said of Oklahoma's demographic during the hearing in Murphy last November. The actual figure is closer to 9 percent, according to the most recent estimates from the U.S. Census Bureau. "So the criminal jurisdiction concerns are really very serious, and the United States is very concerned about what would be a drastic shift in criminal jurisdiction," Kneedler said.
'This Land'To gain a fuller understanding of Carpenter v. Murphy and why it's so important, listen to This Land, a podcast by Cherokee citizen Rebecca Nagle. She is reporting extensively on the case, exploring its history and the ramifications for the tribes in Oklahoma, like the Cherokee Nation, whose homelands will be impacted by the eventual decision. There have been four episodes so far, with Nagle promising an update based on what happened, or didn't happen, at the Supreme Court on Thursday.
We are putting together an update for the #ThisLand podcast feed on what today's surprise no decision announcement means. Not the outcome we were expecting!— Rebecca Nagle (@rebeccanagle) June 27, 2019
Stay tuned to learn what happens next. Subscribe to #ThisLand wherever you get your podcasts.
Supreme Court Decision: Herrera v. WyomingSyllabus | Opinion [Sotomayor] | Dissent [Alito]
Supreme Court Documents: Herrera v. WyomingDocket Sheet: No. 17-532 | Oral Argument Transcript | Questions Presented
Supreme Court Decision: Washington State Department of Licensing v. Cougar DenSyllabus | Judgment [Breyer] | Concurrence [Gorsuch] | Dissent [Roberts] | Dissent [Kavanaugh]
Supreme Court Documents: Washington State Department of Licensing v. Cougar DenDocket Sheet: No. 16-1498 | Questions Presented | Oral Argument Transcript
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