May 31, 2018

Supreme Court Update: Court Issues Series of Decisions Impacting Tribal Interests

Holland & Knight Native American Law Blog
James T. Meggesto

The Supreme Court's 2017-2018 term has been unusually busy with cases affecting Indian tribes and tribal interests ranging from tribal trust lands, online sports betting, boundary disputes and whether an Oklahoma Tribe's Reservation has been diminished. To date, the Supreme Court has granted cert for four cases of interest to Indian Country. Overviews of these cases can be found below:

Tribal Trust Lands

In February, the Supreme Court in 6-3 decision in Patchak v. Zinke held that the Gun Lake Trust Reaffirmation Act of 2014 did not violate Article III of the U.S. Constitution, finally ending a long running case seeking to block the acquisition of land in trust for the Gun Lake Band in Michigan.

Online Sports Betting

In May, the Court in 6-3 in Murphy v. National Collegiate Athletic Ass'n overturned the Professional and Amateur Sports Protection Act of 1992, which implemented a federal ban on sports betting. The ruling opens to the door for states to legalize and regulate sports betting in their jurisdictions. Accordingly, Indian tribes in those states may also conduct sports betting as a part of their gaming operations in accordance with their Compacts or to the extent otherwise lawful under federal or state law. 

Boundary Disputes

One week later, the Court handed down a 7-2 decision in Upper Skagit Tribe v. Lundgren, which vacated a decision of the Washington Supreme Court which held that the doctrine of tribal sovereign immunity was not applicable to a dispute over the boundary of the Tribe's fee property because it was an in rem action.

In vacating decision, the Court clarified that its prior ruling in County of Yakima v. Confederated Tribes and Bands of Yakima Nation, which the Washington Supreme Court relied upon, did not grant courts have subject matter jurisdiction over in rem proceedings in certain situations where claims of sovereign immunity are asserted. The Court thus remanded the case back to the Washington Supreme Court to determine in the first instance whether, as the non-tribal party argued before the Supreme Court, an exception to tribal sovereign immunity could apply in this case because it involves real property and thus would qualify for the "immovable object" exception to sovereign immunity in general. 

The ruling was 7-2 in favor of tribal interests, but the decision was more procedural than substantive. Justices Clarence Thomas and Samuel Alito would have ruled that there is an exception to the doctrine of tribal sovereign immunity in real property actions like this, considering the matter so obvious as to be a matter of "hornbook" law. And while Chief Justice John Roberts joined the majority opinion sending the case back to the Washington Courts, he wrote separately (joined by Justice Anthony Kennedy) to question whether there would ever be a remedy for a non-Indian party in cases where the Tribe could always claim sovereign immunity for land purchased in the open market. Thus, there would appear to be at least two votes against applying sovereign immunity to this case and others like it in the future and at least two votes leaning against tribal immunity in this context. 

Upcoming Cases

Finally, the Court also agreed to hear another tribal law case, Royal v. Murphy. This case involves whether the Muscogee (Creek) Reservation in Oklahoma was disestablished, thereby allowing the State of Oklahoma to criminally prosecute a tribal member for certain crimes occurring on the allegedly former reservation land. The case will be argued in the Court's next term, which will begin in October 2018. 

For more information about these cases, please contact James Meggesto.

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