Content Note: The second half of this story contains references to domestic violence.

WASHINGTON, D.C. — Amid a high-stakes political battle, the nation’s highest court is gearing up for some major decisions that will affect Indian Country for generations to come.

The U.S. Supreme Court only has three Indian law cases on the docket for its current term. But they will be the last that are decided with the involvement of Justice Stephen G. Breyer, who is retiring after nearly three decades on the bench.

Breyer’s exit has set off a major debate over the makeup of the highest court in the land, with Democrats and Republicans once again at odds over his replacement. But the development also underscores the difficulties that tribes have faced in judicial forums all over the country

“Tribal nations and tribal communities are impacted by federal laws and courts more so than anyone else,” President Fawn Sharp of the National Congress of American Indians noted last Monday in her State of Indian Nations address.

Two cases being heard by the Supreme Court on Monday reflect the harsh realities of Sharp’s statement. The outcome in Denezpi v. United States will impact the ability of tribes to protect women and children from violence while Ysleta del Sur Pueblo v. Texas affects the livelihoods of thousands of people who depend on employment in Indian Country.

“When we do not have Native voices perspectives or experience on the federal bench, often decisions are made that ignore history, sovereignty and our truth,” said Sharp, who also serves as vice president of the Quinault Nation.

“These decisions have long lasting effects,” Sharp added.

For the Ysleta del Sur Pueblo, also known as the Tigua Tribe, getting to the Supreme Court has been an ordeal in and of itself. For the past 20 years, the tribe has been battling the state of Texas over the right to engage in gaming on its small reservation.

The tribe has repeatedly suffered from rulings in the lower courts that have led to the loss of significant revenues and jobs at its Speaking Rock Entertainment Center near El Paso. These earlier decisions primarily rely on an interpretation of a federal law that treats Ysleta del Sur’s sovereignty in a manner different than almost every other Indian nation.

Prior attempts, dating back to the early 2000s, to get the Supreme Court to address the disparity have not been successful. But with a big player now involved — that is, the United States government — there is finally hope that the justices will finally change course and reaffirm the tribe’s inherent rights under the Indian Gaming Regulatory Act.

“From the earliest days of the Republic, Indian tribes have been recognized as distinct and independent sovereigns, predating formation of the United States itself,” the National Indian Gaming Association, the United South and Eastern Tribes Sovereignty Protection Fund and NCAI wrote in a brief urging the high court to side with the Ysleta del Sur Pueblo.

More than 80 community and business groups have said they want Naskila Gaming near Livingston to stay open. So why is the State of Texas trying to shut it down? Let's keep Naskila open and save 700 Texas jobs! #txlege https://t.co/ebXGYWBwxf pic.twitter.com/lZZ9e02oPj

— Support AC Tribe (@SupportACTribe) February 4, 2022

Also paying close attention is the Alabama-Coushatta Tribe, whose casino near Houston has been attacked by the state of Texas as well. Naskila Gaming has put 750 people to work and has helped fund significant initiatives that are all the more important in the age of COVID-19.

“New residences have been built, and government buildings have been renovated and expanded,” the tribe said in own brief to the Supreme Court. “Healthcare services are now available to address medical and dental needs that the tribe was unable to support with funding from the federal government alone.”

“And the tribe offers educational initiatives and opportunities for its members that would not be possible without Naskila Gaming,” the brief continues.

The significance of the case is shown in the schedule for the hearing in Ysleta del Sur Pueblo v. Texas. The Supreme Court has allotted 70 minutes for oral arguments, according to the day call for Tuesday, with attorneys from the tribe, the federal government and the state of Texas all taking part.

Brant C. Martin, an attorney from Texas, has 20 minutes to make the tribe’s case. Another 15 minutes has been set aside for Anthony A. Yang, an Assistant to the Solicitor General of the United States, the official at the Department of Justice in charge of Supreme Court litigation.

Both Martin and Yang will be seeking the reversal of a 5th Circuit Court of Appeals decision that was, once again, based on an interpretation of federal law that goes against the tribe’s sovereignty. The U.S. government brief, for instance, says the ruling “erroneously construed” key provisions of the Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, which restored both tribes to federal recognition, decades after their government-to-government status had been terminated

On the other side of the battle is Lanora C. Pettit, the Principal Deputy Solicitor General for the state of Texas. She will get 35 minutes to argue that the 5th Circuit got it right in 2020 by relying on the restrictive interpretation of the restoration law.

At stake in the second case being heard on Monday is an issue that is close to many in Indian Country and one that has been the subject of decades of work across the nation: protecting women and children from violence, no matter who the perpetrator.

In the case of Denezpi v. United States, the perpetrator is Merle Denezpi, a citizen of the Navajo Nation who has been convicted of domestic violence in multiple judicial forums. He pleaded guilty to assault and battery charge after being prosecuted by the Ute Mountain Ute Tribe and was subsequently indicted by the U.S. government for aggravated sexual assault.

There is no dispute that the tribal case and the federal case arise from the same incident on the Ute Mountain Ute Reservation in Colorado, where Denezpi’s partner at the time resided. But what the Supreme Court will be resolving is whether the offender’s rights under the U.S. Constitution are being violated by being prosecuted for the same crime more than once.

According to a brief filed by Denezpi’s attorneys, the “Double Jeopardy Clause plainly bars a single sovereign from prosecuting the same defendant twice for substantively identical criminal offenses.”

Since tribal governments exercise sovereignty independent of the United States, the Supreme Court previously held that the Double Jeopardy Clause does not come into play when one of the prosecution occurs in a tribal judicial forum. The 2004 decision in United States v. Lara, coincidentally, involved a crime against a law enforcement officer, an issue central to ongoing work in Congress to renew the Violence Against Women Act.

What’s different for Denezpi is that his Ute Mountain Ute prosecution was handled in a forum known as a Court of Indian Offenses, commonly known as a CFR Court. His defense team argues that everything about the situation — including the reported title of the CFR case, which was “The United States of America vs. Merle Denezpi” — points against treated the tribe as a separate sovereign.

Currently, five CFR Courts are in operation, handling cases for fewer than 20 tribes, according to the Bureau of Indian Affairs. Some of the affected tribes are asking the Supreme Court to once again rely on the dual sovereignty doctrine, as it did previously in Lara, but also to recognize the realities on the ground when it comes to public safety in their communities.

“A tribal or BIA prosecutor faced with a felony sexual assault on an Indian reservation must make his decisions on the assumption that it is more likely than not that there will never be a federal prosecution,” a brief submitted by the Ute Mountain Ute Tribe, the Shawnee Tribe and the Otoe-Missouria Tribe reads. They further point out that federal prosecutors “generally decline about half of the Indian Country cases that are referred to them, and more than half of the violent crimes.”

“For incidents of the sexual assault, the declination rate was 67%,” the tribes state in highlighting the disparity in lack of prosecutions on reservations.

Still, the distinction in Denezpi is notable enough for the Supreme Court to want to resolve it. And that has many in Indian Country worried about a setback in efforts to recognize tribal jurisdiction over all offenders.

“With constant attacks on our sovereignty, our jurisdiction, and the ability to protect our Native children and courts, we must ensure that we keep fighting for our sovereignty, our laws and our future,” NCAI President Sharp said in her address last week.

Oral arguments will immediately follow the hearing in Ysleta del Sur and are scheduled to last one hour. Michael B. Kimberly, an attorney based in Washington, D.C., will get 30 minutes to argue for Denezpi, who lost a 10th Circuit Court of Appeals decision in his case in 2020.

Erica L. Ross, an Assistant to the Solicitor General of the United States, the official at the Department of Justice in charge of Supreme Court litigation, will represent the federal government. She has 30 minutes to convince the high court that the 10th Circuit got it right.

With the Supreme Court operating under COVID-19 protocols, the building in the nation’s capital remains closed to visitors. Arguments have been broadcast on the internet since May 2020, with audio available on supremecourt.gov and carried by a number of media outlets, including C-SPAN.

Indianz.Com is hosting a room on Clubhouse, the audio-based social media platform, to listen to the argument on Tuesday morning. The Clubhouse app is available for Apple and Android devices.

Readers who are not yet members of Clubhouse can join the Indianz.Com club and participate with their device.

StrongHearts Native Helpline, which is available for free nationwide, is a culturally-appropriate, anonymous, confidential service dedicated to serving Native American and Alaska Native survivors of domestic, dating and sexual violence and concerned relatives and friends. Knowledgeable advocates provide peer support, crisis intervention, personalized safety planning and referrals to Native-centered support services. Call or text 1-844-7NATIVE or visit strongheartshelpline.org for chat advocacy 24 hours a day, 7 days a week.

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