U.S. Supreme Court
A crowd gathers in front of the U.S. Supreme Court on 1st Street NE in Washington, D.C., on the morning of May 3, 2022, as news of a forthcoming decision to limit the reproductive rights of women continues to circulate in legal, political and social circles. Photo by Indianz.Com (CC BY-NC-SA 4.0)
Supreme Court confirms leak as ‘authentic’ amid uncertainty for Indian Country
Tuesday, May 3, 2022
Indianz.Com

WASHINGTON, D.C. — An unprecedented leak from the nation’s highest court is coming amid extreme uncertainty for tribes and their sovereign rights.

In a news release on Tuesday morning, the U.S. Supreme Court acknowledged the draft opinion in a high-profile reproductive rights case as an “authentic” document. But Chief Justice John G. Roberts Jr. denied that the leak would affect the high court’s work, which includes making decisions in three Indian Country cases.

“To the extent this betrayal of the confidences of the Court was intended to undermine the integrity of our operations, it will not succeed,” Roberts said in a statement. “The work of the Court will not be affected in any way.”

Still, Roberts said he would be ordering an “investigation into the source of the leak.” The draft opinion in the reproductive rights case was first reported by POLITICO on Monday night.

“This was a singular and egregious breach of that trust that is an affront to the Court and the community of public servants who work here,” Roberts said.

Indianz.Com Video: Justice Stephen G. Breyer participates in final U.S. Supreme Court argument

Just a few days prior, Roberts was in a much different mood. Last Wednesday, he presided over the final oral arguments of the court’s current term, which happened to be a hearing in Oklahoma v. Castro-Huerta, one of the three Indian law cases that need to be decided by the justices.

The arguments ran for more than two hours, far longer than the 70 minutes allotted by the court. The hearing highlighted the ideological split among the nine justices on the court, six of whom were nominated by Republican presidents, including three chosen by Donald Trump.

High-profile Indian law disputes are often decided by a 5-4 vote, making it relatively easy for the court to rule against tribes and their interests, regardless of precedent set in prior cases. Justice Neil Gorsuch spoke about the supposed strength of these precedents at the hearing last week when he argued that decisions should be based on the law — not on other factors.

“This Court stood firm in Worcester and — with respect to the original meaning of the Constitution a promises made in treaties to the Cherokee in the 1830s,” Gorsuch said. He cited a landmark case from 1832 in which state government jurisdiction over Indian Country was repudiated by the Supreme Court because it not only infringed on tribal sovereignty, it went against treaties that were negotiated on a nation-to-nation basis.

Indianz.Com Audio: U.S. Supreme Court – Oklahoma v. Castro-Huerta – April 27, 2022

“Are we to wilt today because of a social media campaign?” asked Gorsuch, whose record in Indian law is itself unprecedented among the nine justices.

During the hearing, Gorsuch repeatedly pressed the state of Oklahoma to explain why it should be able to exercise jurisdiction in Indian Country. Through Castro-Huerta, the state wants to be able to prosecute non-Indians who commit crimes against Indian victims.

The defendant, a non-Indian named Victor Manuel Castro-Huerta, has admitted in federal court to a charge of child neglect. The victim is a young citizen of the Eastern Band of Cherokee Indians who resided on the reservation on the Cherokee Nation in northeastern Oklahoma at the time of the crime.

Yet not everyone on the court seemed to share Gorsuch’s view on the strength of precedent in Indian law cases. Four of the justices — all chosen by Republican presidents — asked questions that were more sympathetic to the state of Oklahoma, whose argument is largely based on the premise that its criminal justice system is somehow more capable of “protecting victims” than that of any other government.

“We’re talking about non-Indian-on-Indian crime in Indian Country, correct?” asked Justice Brett Kavanaugh, who is one of the newest members of the court.

Kavanaugh pointed out that tribes — based on the precedent in Oliphant v. Suquamish Indian Tribe from 1978 — cannot prosecute non-Indians for most crimes. The ruling is based on the premise that tribal governments cannot exercise jurisdiction that is “inconsistent with their status” as “domestic dependent nations,” according to the high court.

“Because Indian victims right now are not being protected because the federal government doesn’t have the resources to prosecute all these crimes,” he later said, expressing support for the idea that a decision in Castro-Huerta might not be based on precedent, but on other factors out of the court’s control, such as chronic underfunding of public safety in Indian Country.

In addition to Kavanaugh, at least three other Republican-nominated justices seemed to agree with this line of thinking, based on the questions asked during the Castro-Huerta hearing. They include, in order of seniority: Clarence Thomas, Samuel Alito and Amy Coney Barrett, who is the newest member of the court.

Cherokee Nation: Chief Chuck Hoskin Jr. at U.S. Supreme Court

According to POLITICO, Alito drafted the 98-page opinion in Dobbs v. Jackson Women’s Health Organization, a case in which state governments have asked the Supreme Court to prevent women from exercising control over their reproductive systems. For Alito’s draft — which has been confirmed as an “authentic” document — to become prevailing, at least four other justices would have to sign onto it.

According to POLITICO, four other justices indeed agreed to side with Alito after the hearing in Dobbs on December 1, 2021. The news organization’s report said the “line-up remains unchanged as of this week.”

POLITICO reported that Gorsuch would be joining Alito, Thomas, Kavanaugh and Barrett in siding with the state governments, thereby preventing women from obtaining medical services of their own choosing. Such a decision would represent a dramatic reversal of precedent set by the Supreme Court in Roe v. Wade from 1973.

“It concerns me a great deal that we’re going to — after 50 years — decide a woman does not have a right to choose,” President Joe Biden told reporters shortly before noon on Tuesday.

“But even more equally as profound is the rationale used,” added Biden, who led the Senate Committee on the Judiciary during his time in Congress, when he presided over some of the most contentious Supreme Court nomination hearings in history.

“And it would mean that every other decision relating to the notion of privacy is thrown into question,” Biden said, citing marriage equality as one decision that could be affected by the overturning of Roe.

U.S. Supreme Court
Vehicular traffic was blocked on 2nd Street NE, adjacent to the U.S. Supreme Court, on May 3, 2022, as word spread of a decision to limit the reproductive rights of women. Pedestrian traffic was also blocked on the sidewalk next to the Supreme Court building in Washington, D.C. Photo by Indianz.Com (CC BY-NC-SA 4.0)

In addition to Castro-Huerta, the Supreme Court has to make decisions in Denezpi v. United States, which will impact the ability of tribes to protect women and children from violence, and Ysleta del Sur Pueblo v. Texas, which affects the livelihoods of thousands of people who depend on employment in Indian Country. The two prior cases were argued on February 21.

All three cases are the last in which Justice Stephen G. Breyer will participate before he retires at the end of the court’s current session, which began last October. The hearing in Castro-Huerta last Wednesday concluded with an emotional tribute from Chief Justice Roberts.

“For 28 years, this has been his arena for remarks profound and moving, questions challenging and insightful and hypotheticals downright silly,” Roberts said, his voice cracking at times during the tribute.

The Supreme Court typically wraps up its term at the end of June, so decisions in Castro-Huerta, Denezpi and Ysleta del Sur Pueblo are expected by that time. Historically, Indian law cases are usually among the last to be decided, with waits among the longest on record.

During the October 2015 term, for instance, it took the Supreme Court 200 days to come to a 4-4 tie in a tribal court jurisdiction case. In the October 2013 term, a 5-4 decision in a tribal sovereign immunity case took 177 days.

But one high-profile Indian law dispute took even longer to reach a result. When Justice Gorsuch finally released the 5-4 opinion in McGirt v. Oklahoma in July 2020, Indian Country had waited more than two years, over two separate Supreme Court sessions, to hear an affirmation of their sovereign treaty rights from the highest court in the land.

“On the far end of the Trail of Tears was a promise,” Gorsuch wrote in the landmark McGirt opinion that is now under attack from the state of Oklahoma in Castro-Huerta, less than two years later.

Still, once the decisions in Castro-Huerta, Denezpi and Ysleta del Sur Pueblo are known, Indian Country has another highly contentious case to prepare for. Arguments in Haaland v. Brackeen will be heard sometime during the session that begins in October 2022.

At issue in Brackeen is whether tribes can exercise sovereignty over their most precious resource — their children — through the Indian Child Welfare Act. The 5th Circuit Court of Appeals, which is stacked with Republican-nominated judges, has struck down key provisions of the law as unconstitutional, hindering efforts to prevent Indian children from being separated from their communities, a problem that goes back hundreds of years.

Tribes are being joined by the Biden administration in seeking to reinstate the contested ICWA provisions. But Republican-led states, along with non-Indian interests, want the Supreme Court to strike down the entire law as illegal, on the premise that it is based on “race” rather than the sovereign relationship between tribal nations and the federal government.

Indianz.Com Video: Sen. Alex Padilla (D-California) and Judge Ketanji Brown Jackson

The Supreme Court has not yet set a date for arguments in Brackeen. When the hearing comes, it will be with a new member of the court, as Breyer’s retirement has led to the nomination of Judge Kentanji Brown Jackson as his replacement.

The U.S. Senate voted 53-47 on April 7 to confirm Jackson as the first African American woman on the Supreme Court. During her nomination hearing, she was asked about the nation-to-nation relationship.

“It is established in the law, the Supreme Court has established, that there is a special trust relationship between Indian tribes and the federal government,” Brown said on on March 22, on the second day of her four-day confirmation hearing.

Brown further noted that the U.S. government owes an obligation to tribes that is of a unique fiduciary nature. In Seminole Nation v. United States, the Supreme Court described the duties as “moral obligations of the highest responsibility and trust.”

“Indian tribes are, as a general matter, considered to be sovereigns in the relationship is a sovereign-to-sovereign relationship, but it’s one in which the federal government has some responsibilities related to the Indian nation,” Brown said. “And it’s very, very important care and trust responsibility that the federal government has in terms of making sure that the tribes are recognized in and cared for, in the context of our system.”

U.S. Supreme Court
A barricade is erected on the Maryland Ave NE side of the U.S. Supreme Court building, where security guards stand by as news circulated of a forthcoming decision to limit the reproductive rights of women. Photo by Indianz.Com (CC BY-NC-SA 4.0)

The Supreme Court’s last ICWA case resulted in a loss for tribal interests. By a 5-4 vote in Adoptive Couple v. Baby Girl, the justices ruled that a Cherokee Nation citizen could not invoke the law in order to regain custody of his child, who was adopted by a non-Indian couple against his wishes.

In the majority opinion, Justice Alito opened with a sentence that was of a very different nature than the one that began McGirt. He wrote: “This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee.”

The Cherokee Nation does not base tribal citizenship on blood quantum and ICWA applies to children who are citizens of tribal nations, or are eligible for citizenship. The federal law does not tie applicability to blood quantum.

The June 2013 decision in Baby Girl came amid a string of defeats for Indian Country. Between 2006 through 2016, tribal interests lost nine out of 11 cases that were heard by the Supreme Court.

The stunning loss record coincided with the arrival of John Roberts as Chief Justice of the Supreme Court. He was nominated by Republican president George W. Bush to replace William Rehnquist, who died in September 2005.

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